Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II. (b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06. (c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock. (d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates. (e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration. (f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any. (g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto. (h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments. (i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 5 contracts
Sources: Merger Agreement (Imperial Holly Corp), Merger Agreement (Imperial Holly Corp), Merger Agreement (Savannah Foods & Industries Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementEffective Date, IHK ITI and Lil Marc shall appoint a bank or trust company Pacific Stock Transfer Company to act as paying exchange agent in the Merger (the "Exchange Agent") for the payment of the Merger Consideration). As of or promptly after At the Effective Time, IHK Lil Marc shall deposit the aggregate Merger Consideration with the Exchange Agent Agent, for the benefit of the holders of shares of Company ITI Common Stock, for exchange in accordance with certificates representing the shares of Lil Marc Common Stock issuable pursuant to this Article IISection 1.8.
(b) As soon as practicable after After the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing that immediately prior to the number of full Effective Time represented issued and outstanding shares of IHK ITI Common Stock received as Stock Consideration and the Cash Consideration(other than Dissenting Shares, if any, into which the number of and other than shares of Company ITI Common Stock previously represented that are held by such certificate Lil Marc, Newco or certificates surrendered any other wholly owned subsidiary of Lil Marc or are held in the treasury of ITI) (the "Certificates") shall have been converted pursuant surrender the same to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practicesAgent. After the Effective Time, there shall be no further transfer on upon receipt by the records Exchange Agent of (i) the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise Certificates duly endorsed in proper form for transfer and (ii) the federal taxpayer identification number of each holder of Certificates, the Exchange Agent shall issue, to each former holder of ITI Common Stock (other than Dissenting Shares, if any, and other than shares of ITI Common Stock that are held by Lil Marc, Newco or any other wholly owned subsidiary of Lil Marc or are held in the person requesting treasury of ITI), a certificate representing the number of shares of Lil Marc Common Stock that such exchange holder is entitled to receive pursuant to Section 1.6 hereof. Pending such surrender and exchange, each Certificate shall pay be deemed for all corporate purposes to evidence the Surviving Corporation or its transfer agent any transfer or other taxes required by reason number of the issuance whole shares of certificates for Lil Marc Common Stock into which such shares of IHK ITI Common Stock in a name other than that of evidenced by such Certificate shall have been so converted by the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicableMerger. Until surrendered as contemplated by this Section 2.10(b), each certificate All certificates for shares of Company Lil Marc Common Stock to be issued in the Merger shall be deemed at any time after issued in the Effective Time of same name in which the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Certificate surrendered in exchange therefore is registered.
(c) No dividends holder of a Certificate shall be entitled to receive any dividend or other distributions with distribution from Lil Marc in respect to shares of IHK the Lil Marc Common Stock with a record date after to be issued in respect thereof until the Effective Time surrender of such Certificate. Upon such surrender, there shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after (without interest) that theretofore became payable but that were not paid by reason of the Effective Time theretofore paid foregoing, with respect to such the number of shares of IHK Lil Marc Common Stock, and (ii) at Stock represented by the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time but prior to certificates issued upon such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stocksurrender.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II At any time following one (including any cash paid pursuant to Section 2.10(e)1) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock year after the Effective Time who would otherwise have been Time, the Surviving Corporation shall be entitled to receive as Stock Consideration a fraction require the Exchange Agent to deliver to the Surviving Corporation any shares of a share of IHK Lil Marc Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration that had been deposited with the Exchange Agent pursuant by or on behalf of Lil Marc, Newco or the Surviving Corporation and have not been disbursed to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any Certificates. Any holders of shares of Company Common Stock prior to the Effective Time Certificates who have not theretofore complied with this Article II Section 1.8(b) hereof shall thereafter look (subject to applicable escheat and other similar laws) only to IHK and only as general creditors thereof the Surviving Corporation for payment of their claim for cash or shares of IHK Common Stockthe Merger Consideration, if any.
(g) None of Merger Subwithout any interest thereon, and shall have no greater rights against the Company, IHK or the Exchange Agent shall Surviving Corporation than may be liable accorded to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property general creditors of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoCorporation under Delaware law.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 4 contracts
Sources: Merger Agreement (Lil Marc Inc), Merger Agreement (Lil Marc Inc), Merger Agreement (Lil Marc Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As soon as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly reasonably practicable after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent shall mail to each holder of record of a Certificate immediately prior to the Effective Time whose shares of Company Common Stock were converted into the right to receive shares of Acquiror Common Stock pursuant to Section 2.1 a customary form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) containing instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon proper surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive in respect of the shares of Company Common Stock formerly represented by such Certificate, and such Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued for the benefit of the holders of the Certificates on the Merger Consideration payable upon the surrender of the Certificates. Notwithstanding anything to the contrary contained in this Agreement, no holder of Book-Entry Shares shall be required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent in order to receive the Merger Consideration that such holder is entitled to receive pursuant to Article II. In lieu thereof, each holder of record of Book-Entry Shares whose shares of Company Common StockStock were converted into the right to receive shares of Acquiror Common Stock pursuant to Section 2.1 shall automatically upon the Effective Time (or, for exchange in accordance with this Article II.
(bat any later time at which such Book-Entry Shares shall be so converted) As soon be entitled to receive, and Acquiror shall cause the Exchange Agent to pay and deliver as promptly as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06that such holder is entitled to receive pursuant to Article II, and the Book Entry Shares of such holder shall forthwith be cancelled.
(cb) No dividends or other distributions with respect to shares of IHK Acquiror Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Acquiror Common Stock represented thereby that such holder would be entitled to receive upon surrender of such Certificate and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) 2.2 until the such holder shall surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby such Certificate in accordance with this Article IIIII. Subject to After the effect of applicable laws, following surrender of a Certificate in accordance with this Article III, such holder thereof entitled to receive shares of Acquiror Common Stock shall be entitled to receive any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions distributions, without any interest thereon, with a record date after the Effective Time and which theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 had become payable with respect to such whole shares of IHK Acquiror Common StockStock issuable to such holder in respect of such Certificate.
(c) If the payment of the Merger Consideration is to be made to a person other than the registered holder of the Certificate surrendered in exchange therefor, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such payment shall pay to the Exchange Agent in advance any applicable stock transfer or other Taxes or shall establish to the reasonable satisfaction of the Exchange Agent that such Taxes have been paid or are not payable.
(d) All cash paid upon At and after the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) Effective Time, there shall be deemed to have been issued (and paid) in full satisfaction no transfers on the stock transfer books of all rights pertaining to the Surviving Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares are presented for transfer, they shall be cancelled and exchanged for cash theretofore represented by such certificatesthe Merger Consideration as provided in this Article III.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration property deposited with the Exchange Agent pursuant to this Section 2.10 (3.1 that remains unclaimed by the "Exchange Fund") which remains undistributed to the holders stockholders of the certificates representing shares of Company Common Stock for six nine (9) months after the Effective Time shall be delivered returned, at the request of Acquiror, to IHK, and any holders Acquiror or transferred as directed by Acquiror. Any stockholders of shares of the Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II III shall thereafter look only to IHK and only as general creditors thereof Acquiror for payment of their claim for cash or shares the Merger Consideration and unpaid dividends and distributions on the Acquiror Common Stock deliverable in respect of IHK each share of Company Common StockStock held by such stockholder at the Effective Time as determined pursuant to this Agreement, if any.
(g) None in each case, without any interest thereon. Notwithstanding anything to the contrary contained herein, none of Acquiror, Merger Sub, the Company, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of any cash or any shares of IHK Company Common Stock from the Exchange Fund for any amount properly delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoLaws.
(hf) The Exchange Agent In the event any Certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fund, as directed by IHK, on a daily basis, provided making of an affidavit of that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest fact by the United States person claiming such Certificate to be lost, stolen or destroyed and, if required by Acquiror, the posting by such person of America, a bond in such amount as Acquiror or one of its Subsidiaries may determine is reasonably necessary as indemnity against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentsCertificate, or the Exchange Fund diminishes Agent will issue in exchange for other reasons below the level required to make prompt payments of such lost, stolen or destroyed Certificate the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as deliverable in respect thereof pursuant to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsthis Agreement.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 4 contracts
Sources: Merger Agreement (As Seen on TV, Inc.), Merger Agreement (Ediets Com Inc), Merger Agreement (Schwab Charles Corp)
Exchange of Certificates. (a) Prior to the mailing Each outstanding certificate theretofore representing shares of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent Lions Gate common stock that are not Dissenting Shares (the "Exchange AgentNon-Dissenting Shares") shall be deemed for all purposes to represent the payment number of whole shares of the DOBI common stock into which such Non-Dissenting Shares of Lions Gate common stock were converted in the Merger Considerationand the holder thereof shall not be required to surrender such certificate for a certificate issued by DOBI. As of or promptly However, after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit Date of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented shares representing Non-Dissenting Shares of Lions Gate common stock may, at such stockholder's option and sole discretion, surrender the same for cancellation to The Nevada Agency and Trust Company Common Stock shallLimited, upon surrender to as the Exchange Agent sole stock transfer and registrar of such certificate or certificates the Lions Gate common stock and acceptances thereof by as exchange agent therefor (the "Exchange Agent"), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received the DOBI common stock into which the surrendered shares were converted as Stock Consideration herein provided. The registered owner on the books and records of DOBI or the Cash ConsiderationExchange Agent of any such outstanding certificate representing Non-Dissenting Shares of Lions Gate common stock shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Lions Gate so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock DOBI stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent DOBI that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Lions Gate Investment LTD), Merger Agreement (Lions Gate Investment LTD), Merger Agreement (Lions Gate Investment LTD)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates which immediately prior thereto to the Effective Time represented shares of Company Common Stock shallshall be entitled to receive in exchange therefor, upon surrender thereof to an exchange agent reasonably satisfactory to Parent and the Exchange Agent of such certificate or certificates and acceptances thereof by Company (the "Exchange Agent"), be entitled to a certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Considerationto which such holder is entitled pursuant to Section 3.1(a). Notwithstanding any other provision of this Agreement, if any, into which the number (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock previously have surrendered them for exchange as provided herein, no dividends or other distributions shall be paid with respect to any shares represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there no payment for fractional shares shall be no further transfer on the records of the Company or its transfer agent of made, and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any dividends or other distributions or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, and if such certificates are presented there shall be paid to the Surviving Corporation for transferholder of such certificate the amount of any dividends or other distributions which theretofore became payable, they shall be canceled against delivery but which were not paid by reason of cash and/or certificates for the foregoing, with respect to the number of whole shares of IHK Parent Common Stock in accordance with this Agreement. represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(c) Within five days after the issuance of Effective Time, Parent shall make available to the Exchange Agent the certificates for such representing shares of IHK Parent Common Stock required to effect the exchanges referred to in a name other than that paragraph (a) above and cash for payment of any fractional shares referred to in Section 3.4.
(d) Within five days after the registered Effective Time, Parent shall cause the Exchange Agent to mail to each holder of the record of a certificate surrendered, or establish certificates that immediately prior to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for Effective Time represented outstanding shares of Company Common Stock shall be deemed at any time after (the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c"Company Certificates") No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at a letter of transmittal satisfactory to the time Company (which shall specify that delivery shall be effected, and risk of such surrender loss and title to the amount Company Certificates shall pass, only upon actual delivery of any cash payable in lieu of fractional shares the Company Certificates to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common StockExchange Agent), and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon instructions for use in effecting the surrender of the Company Certificates in exchange for exchange of certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to into which the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other the Company Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementSection 3.1(a), each and the Company Certificates so surrendered shall be canceled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Parent Common Stock from the Exchange Fund or dividends or distributions thereon delivered to a public office official pursuant to any applicable abandoned property, escheat or similar lawlaws.
(e) Promptly following the date which is twelve months after the Effective Time, the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. If Thereafter, each holder of a Company Certificate may surrender such Company Certificate to the Surviving Corporation or Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock, together with cash for the payment of any certificates representing fractional shares referred to in Section 3.4, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any shares of Parent Common Stock, together with cash for the payment of any fractional shares referred to in Section 3.4, delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Company Certificate shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the date on which any Merger Consideration Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect of such certificate would otherwise escheat to or become thereof determined in accordance with this Article III, together with cash for the property payment of any Government Authorityfractional shares referred to in Section 3.4. When authorizing such issuance in exchange therefor, any such Merger Consideration in respect the Board of such certificate shall, as such time and to the extent permitted by applicable law, become the property Directors of the Surviving CorporationCorporation may, free in its discretion and clear as a condition precedent to the issuance thereof, require the owner of all claims such lost, stolen or interest of destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To against the extent that there are losses Surviving Corporation with respect to such investmentsthe Company Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (American Disposal Services Inc), Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company Tomax Utah Common Stock shallmay, upon at such stockholder's option, surrender the same for cancellation to such institution as Tomax Delaware shall appoint at the Exchange Agent of time to act as exchange agent (the "EXCHANGE AGENT"), and each such certificate or certificates and acceptances thereof by the Exchange Agent, holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Tomax Utah Common Stock Consideration shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation's Common Stock into which such shares of Tomax Utah Common Stock were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number restrictions on transferability as the certificates of shares of Company Tomax Utah Common Stock previously represented so converted and given in exchange therefor, unless otherwise determined by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK the Surviving Corporation's Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Tomax Corp), Merger Agreement (Tomax Corp), Merger Agreement (Tomax Corp)
Exchange of Certificates. Each holder of a certificate formerly representing Bank Stock (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company other than Dissenting Common Stock) who surrenders or has surrendered such certificate (or customary affidavits and indemnification regarding the loss or destruction of such certificate), for exchange in accordance together with this Article II.
(b) As soon as practicable after the Effective Timeduly executed transmittal materials required by Section 2.10, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agentshall, upon acceptance thereof, be entitled to the Per Share Consideration of a certificate representing Company Stock or certificates representing the number proceeds of full shares the sale of IHK Common Stock received as Stock Consideration such stock in the Offering and the Cash Consideration, if any, Warrants into which the number of shares of Company Common Bank Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant hereto, as well as cash in lieu of any fractional shares of Company Stock to this Agreementwhich such holder would otherwise be entitled. The Exchange Agent shall accept such certificates Bank certificate upon compliance with such reasonable and customary terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b)3.4, each certificate representing Bank Stock shall be deemed from and after the Effective Time to evidence only the right to receive the Per Share Consideration Company Stock and a Warrant, as the case may be, upon such surrender. The Company shall not be obligated to deliver the consideration to which any former holder of Bank Stock is entitled as a result of the Merger until such holder surrenders his certificate or certificates representing shares of Bank Stock for exchange as provided in this Article III. If any certificate for shares of Company Common Stock Stock, or any check representing declared but unpaid dividends, is to be issued in a name other than that in which a certificate surrendered for exchange is issued, the certificate so surrendered shall be deemed at properly endorsed and otherwise in proper form for transfer and the person requesting such exchange shall affix any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid requisite stock transfer tax stamps to the holder of any unsurrendered certificate surrendered or provide funds for shares of Company Common Stock with respect their purchase or establish to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there taxes are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsnot payable.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization (Pacific Community Banking Group), Agreement and Plan of Reorganization (Pacific Community Banking Group), Agreement and Plan of Reorganization (Pacific Community Banking Group)
Exchange of Certificates. (a) Prior From time to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after time following the Effective Time, IHK as required by subsections (b) and (c) below, Parent shall deposit deliver to the aggregate Merger Consideration with the Exchange Agent Surviving Corporation for the benefit of the holders of shares of Company Common Stock, Class A Shares and Class B Shares for exchange in accordance with this Article II2 through the Surviving Corporation: (i) certificates representing the appropriate number of shares of Parent Common Stock and (ii) cash to be paid in lieu of fractional shares of Parent Common Stock (such shares of Parent Common Stock and such cash are hereinafter referred to as the "Exchange Fund") issuable pursuant to Sections 2.9 and 2.10 in exchange for outstanding Class A Shares and Class B Shares, respectively.
(b) As soon as reasonably practicable after the Effective Time, the Surviving Corporation shall mail to each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates (each a "Preferred Certificate") which immediately prior to the Effective Time represented outstanding Class A Shares or Class B Shares whose shares were converted into the right to receive shares of Parent Common Stock pursuant to Section 2.9 or 2.10: (i) a letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the Preferred Certificates shall pass only upon delivery of the Preferred Certificates to the Surviving Corporation and shall be in such form and have such other provisions as Parent and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of the Preferred Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender to the Surviving Corporation of a Preferred Certificate for cancellation, together with such letter of transmittal duly executed, the holder of such Preferred Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock and, if applicable, a check representing the number cash consideration to which such holder may be entitled on account of full shares a fractional share of IHK Parent Common Stock received as Stock Consideration which such holder has the right to receive pursuant to the provisions of this Article 2 and the Cash ConsiderationPreferred Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Class A or Class B Shares which are not registered in the transfer records of the Company, if any, into which a certificate representing the proper number of shares of Company Parent Common Stock previously represented by may be issued to a transferee if the Preferred Certificate representing such certificate Class A Shares or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are Class B Shares is presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for accompanied by all documents required to evidence and effect such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and by evidence that the person requesting such exchange shall pay to the Surviving Corporation or its any applicable stock transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 2.10(b)2.13, each certificate for shares of Company Common Stock Preferred Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 2.062.13.
(c) No dividends or other distributions declared or made after the Effective Time with respect to shares of IHK Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Preferred Certificate with respect to the shares of IHK Parent Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e2.13(f) until the holder of record of such Preferred Certificate shall surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article IIsuch Preferred Certificate. Subject to the effect of applicable laws, following surrender of any such certificates, these Preferred Certificate there shall be paid to the record holder of the certificate certificates representing whole shares of IHK Parent Common Stock issued in connection therewith, exchange therefor without interest (i) at the time of such surrender the amount of any cash payable in lieu of a fractional shares share of Parent Common Stock to which such holder is entitled pursuant to Section 2.10(e2.13(f) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of IHK Parent Common Stock, Stock and (ii) at the appropriate payment date, date the proportionate 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 IHK Parent Common Stock.
(d) In the event that any Preferred Certificate shall have been lost, stolen or destroyed, the Surviving Corporation shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof, certificates representing such shares of Parent Common Stock and cash in lieu of fractional shares if any as may be required pursuant to this Agreement provided, however, that Parent or its Surviving Corporation may, in its discretion, require the delivery of a suitable bond or indemnity.
(e) All cash paid shares of Parent Common Stock issued upon the surrender for exchange of certificates representing shares of Company Common Stock Preferred Certificates in accordance with the terms of this Article II hereof (including any cash paid pursuant to Section 2.10(e2.13(c) or 2.13(f)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to such Class A Shares or Class B Shares; subject, however, to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding Surviving Corporation's obligation to pay any dividends or make any other provisions distributions with a record date prior to the Effective Time which may have been declared or made by the Company on such Class A Shares or Class B Shares in accordance with the terms of this Agreement, each holder and which remain unpaid at the Effective Time, and there shall be no further registration of shares transfers on the stock transfer books of Company Common Stock the Surviving Corporation of the Class A Shares or Class B Shares which were outstanding immediately prior to the Effective Time. If after the Effective Time who would Preferred Certificates are presented to the Surviving Corporation for any reason they shall be canceled and exchanged as provided in this Article 2.
(f) No fractions of a share of Parent Common Stock shall be issued in the Merger but in lieu thereof each holder of Class A Shares or Class B Shares otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Parent Common Stock (after taking into account all shares shall upon surrender of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a his or her Preferred Certificate or Preferred Certificates be entitled to receive an amount of cash payment (without interest) equal to such fraction multiplied determined by multiplying the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company closing price for Parent Common Stock for six months after as reported on the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock NYSE Composite Transactions reporting system on the business day five days prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only by the fractional share interest to IHK and only as general creditors thereof for which such holder would otherwise be entitled. The parties acknowledge that payment of their claim the cash consideration in lieu of issuing fractional shares was not separately bargained for cash or shares consideration but merely represents a mechanical rounding off for purposes of IHK Common Stock, if anysimplifying the corporate and accounting complexities which would otherwise be caused by the issuance of fractional shares.
(g) None of Merger Sub, Neither Parent nor the Company, IHK or the Exchange Agent Company shall be liable to any person in respect holder of any cash Class A Shares or any shares of IHK Class B Shares or Parent Common Stock as the case may be for such shares (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Marriott International Inc /Md/), Merger Agreement (Mi Subsidiary I Inc), Merger Agreement (Execustay Corp)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank or trust company each holder of an outstanding certificate representing United Illinois Common Stock may, at such holder's option, surrender the same for cancellation to act our Stock Transfer Department, as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the surrendered shares were converted as provided herein. Unless and until so surrendered, each outstanding certificate theretofore representing shares of United Illinois Common Stock shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock previously into which such shares of United Illinois Common Stock were converted in the Merger.
(b) The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such outstanding certificate or certificates surrendered shall, until such certificate shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further surrendered for transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented conversion or otherwise accounted for to the Surviving Corporation for transferor the Exchange Agent, they shall have and be canceled against delivery of cash and/or certificates for entitled to exercise any voting and other rights with respect to, and to receive dividends and other distributions upon the shares of IHK Common Stock of the Surviving Corporation represented by, such outstanding certificate as provided above.
(c) Each certificate representing Common Stock of the Surviving Corporation so issued in accordance the Merger shall bear the same legends, if any, with this Agreement. respect to the restrictions on transferability as the certificates of United Illinois so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation.
(d) If any certificate for such shares of IHK Common Stock the Surviving Corporation stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof: (i) that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer; (ii) that such transfer otherwise be proper and comply with applicable securities laws; and (iii) that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent the Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Utg Inc), Merger Agreement (Utg Inc), Merger Agreement (Utg Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeSimultaneously herewith, each holder of an outstanding Shareholder is delivering to Parent the certificate or certificates which prior thereto represented representing its shares of Company Common Stock shall(each, upon surrender to the Exchange Agent of a "Certificate") in form sufficient for transfer and cancellation pursuant hereto. Each Shareholder surrendering such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor, without any further payment of consideration by such Shareholder, (i) a certificate or certificates representing the evidencing that number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with in respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented formerly evidenced by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock Certificate (after taking into account all shares of Company Common Stock delivered then held of record by such holder) and (ii) a check representing the amount of cash in lieu of fractional shares of Parent Common Stock, if any, and unpaid dividends or other distributions, if any, to which such holder is entitled pursuant to the provisions of this Section 2.03, after giving effect to any applicable withholding tax, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to the Shareholders.
(b) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Certificates, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of Parent. Each holder of shares of Company Common Stock who would otherwise have been entitled to receive in the Merger a fraction of a share of Parent Common Stock (after taking into account all certificates surrendered by such holder) shall be entitled to receive, in lieu thereof, a cash payment check in an amount (without interest) equal to such fraction fractional part of a share of Parent Common Stock multiplied by the Cash ConsiderationAverage Price.
(fc) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months Promptly after the Effective Time Time, the Surviving Corporation shall be delivered issue to IHK, and any holders of Parent a certificate representing One Hundred (100) shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property common stock of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent Parent shall invest any cash included in cause the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations certificate representing the shares of the United States capital stock of America or obligations fully guaranteed as Acquisition to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentscanceled.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Bisys Group Inc), Merger Agreement (Bisys Group Inc), Merger Agreement (Bisys Group Inc)
Exchange of Certificates. (a) Prior Pursuant to the mailing of the Proxy StatementSection 1.03(d), IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent shall hold, for the benefit account of the holders relevant Entergy shareholders, the global certificate(s) representing all of the outstanding TransCo Common Units distributed in the Distribution. Such TransCo Common Units shall be converted into shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company ITC Common Stock in accordance with the terms of this Article II I.
(b) Prior to the Closing, Entergy shall appoint a bank or trust company reasonably acceptable to ITC as exchange agent (the “Exchange Agent”). Prior to or at the Effective Time, ITC shall deposit with the Exchange Agent, for the benefit of the holders of TransCo Common Units, for exchange in accordance with this Article I through the Exchange Agent, evidence in book entry form representing the shares of ITC Common Stock issuable pursuant to this Article I in exchange for outstanding TransCo Common Units. For the purposes of such deposit, ITC shall assume that there shall not be any fractional shares of ITC Common Stock. ITC shall make available to the Exchange Agent, for addition to the Exchange Fund, from time to time as needed or as reasonably requested by Entergy, cash sufficient to pay cash in lieu of fractional shares in accordance with Section 1.13 and cash sufficient to pay any dividends and other distributions pursuant to Section 1.14. All evidence in book entry form of ITC Common Stock including any cash in lieu of fractional shares of ITC Common Stock to be paid pursuant to Section 2.10(e)) shall be deemed to have been issued (1.13 and paid) in full satisfaction the amount of all rights pertaining any dividends or other distributions payable with respect to the shares of Company ITC Common Stock exchanged for cash theretofore represented by such certificatespursuant to Section 1.14 are hereinafter referred to as the “Exchange Fund.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after ” Following the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receiveTime, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent shall, pursuant to irrevocable instructions, deliver the ITC Common Stock to be issued pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders Article I out of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the The Exchange Fund diminishes shall not be used for any other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentspurpose.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Separation Agreement, Merger Agreement (Entergy Corp /De/), Merger Agreement (ITC Holdings Corp.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after After the Effective Time, IHK shall deposit the aggregate Merger Consideration with Time and pursuant to a customary letter of transmittal or other instructional form provided by the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by IMMUNOTECH Security Holders, the IMMUNOTECH Security Holders shall be required to surrender all their IMMUNOTECH Securities to the Exchange Agent, and the IMMUNOTECH Security Holders shall be entitled upon such surrender to a certificate or receive in exchange therefor certificates representing the proportional number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, Merger Shares into which the number of shares of Company Common Stock previously IMMUNOTECH Securities theretofore represented by such certificate or certificates the stock transfer forms so surrendered shall have been converted exchanged pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose Until so surrendered, each outstanding certificate, which, prior to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stockrepresented IMMUNOTECH Securities, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after for all corporate purpose, subject to the Effective Time further provisions of this Article I, to evidence the ownership of the number of whole Merger Shares for which such IMMUNOTECH Securities have been so exchanged. No dividend payable to represent only the right holders of Merger Shares of record as of any Date subsequent to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder owner of any unsurrendered certificate for shares which, prior to the Effective Time, represented IMMUNOTECH Securities, until such certificate or certificates representing all the relevant IMMUNOTECH Securities, together with a stock transfer form, are surrendered as provided in this Article I or pursuant to letters of Company Common Stock transmittal or other instructions with respect to lost certificates provided by the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockExchange Agent.
(db) All cash paid upon Merger Shares for which the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of IMMUNOTECH Securities shall have been exchanged pursuant to this Article II (including any cash paid pursuant to Section 2.10(e)) I shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificatesIMMUNOTECH Securities.
(ec) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after On the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction Date, the stock transfer book of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time IMMUNOTECH shall be delivered deemed to IHK, be closed and any holders no transfer of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II IMMUNOTECH Securities shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anybe recorded thereon.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Immunotech Laboratories, Inc.), Merger Agreement (Immunotech Laboratories, Inc.)
Exchange of Certificates. (a) Prior At the Effective Time and upon surrender of a certificate representing the 100 shares of LJR Common Stock held in the name of the LJR Stockholder, Pubco shall deliver to the mailing of the Proxy Statement, IHK shall appoint LJR Stockholder a bank or trust company to act as paying agent stock certificate for (the "Exchange Agent"i) for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted Pubco D Preferred Shares as determined pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockSection 1.08(a)(ii), and if such certificates are presented to (ii) the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablePubco C Preferred Share. Until surrendered as contemplated by this Section 2.10(b1.09(a), each certificate for shares of Company held by the LJR Stockholder representing LJR Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender thereof the Merger Consideration applicable number of shares of Pubco D Preferred Shares and Pubco C Preferred Shares, which the LJR Stockholder has the right to receive pursuant to Section 1.08(a)(ii).
(b) In the event that LJR changes the number of shares of LJR Common Stock or securities convertible or exchangeable into or exercisable for shares of LJR Common Stock, or Pubco changes the number of shares of Pubco Common Stock or securities convertible or exchangeable into or exercisable for shares of Pubco Common Stock, issued and outstanding prior to the Effective Time, in each case as contemplated by a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, subdivision, exchange or readjustment of shares, or other similar transaction, the Conversion Ratio shall be ratably adjusted; provided, however, that nothing in this Section 2.061.09(b) shall be deemed to permit or authorize any party hereto to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(c) No dividends or other distributions with respect to Pubco agrees that it will cause the number of Pubco D Preferred Shares and Pubco C Preferred Shares into which the LJR Stockholder’s shares of IHK LJR Common Stock with a record date after are converted into at the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until 1.08(a)(ii), to be available at the surrender Effective Time for such purposes. Pubco further covenants that immediately following the Effective Time, Pubco will effect cancellations of the certificate for outstanding shares of Company Pubco Common Stock with respect to the and that there will be no more than 48,669,098 pre-Merger shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Pubco Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares and outstanding immediately prior to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stockon a fully-diluted basis, and (ii) at the appropriate payment datethat no other pre-Merger common or preferred stock or equity securities or any options, the proportionate amount of dividends warrants, rights 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 agreements or instruments convertible, exchangeable or exercisable into common or preferred stock or other equity securities of IHK Common StockPubco shall be issued or outstanding, except as set forth on Schedule 1.09(c).
(d) All cash paid upon Neither the surrender Merger Consideration Shares issuable to the LJR Stockholder in exchange for exchange of certificates representing shares of Company LJR Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to this Agreement nor the shares of Company Pubco Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion issuable upon conversion of the Merger Consideration deposited with Pubco D Preferred Shares will be registered under the Exchange Agent pursuant to this Section 2.10 Securities Act of 1933, as amended (the "Exchange Fund"“Securities Act”) which remains undistributed to or the holders securities laws of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHKany State, and any holders of each stock certificate evidencing such shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to bear a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included restrictive legend substantially in the Exchange Fundfollowing form: THE SHARES OF COMMON STOCK OF NULIFE SCIENCES, as directed by IHKINC. EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsOR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (NuLife Sciences, Inc.), Merger Agreement (NuLife Sciences, Inc.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementEffective Time, IHK Buyer shall appoint a bank or trust company paying agent reasonably acceptable to Seller to act as paying agent (the "Exchange Paying Agent") for the payment of the Merger Consideration. As Consideration upon surrender of certificates formerly representing issued and outstanding Seller Common Shares or promptly after Seller Preferred Shares and cash payable in respect of Seller Common OP Units, Seller Options and Warrants.
(b) Parent and Buyer shall provide to the Paying Agent on or before the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares Seller Common Shares, Seller Preferred Shares and Seller Common OP Units, cash payable in exchange for the issued and outstanding Seller Common Shares and Seller Preferred Shares and cash payable in respect of Company Seller Common Stock, for exchange in accordance with this Article IIOP Units.
(bc) As soon as practicable Promptly after the Effective Time, the Surviving Company shall cause the Paying Agent to mail to each holder of an outstanding record of a certificate or certificates which immediately prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Effective Time represented outstanding Seller Common Shares or Seller Preferred Shares (the "Certificates")
(i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Paying Agent and shall be in such form and have such other provisions as Buyer may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon surrender of a Certificate for cancellation to the Paying Agent, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to a certificate or certificates representing receive in exchange therefor the number of full shares of IHK Common Stock received as Stock Consideration applicable Merger Consideration, and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Seller Common Shares or Seller Preferred Shares which is not registered in the transfer records of Seller, payment may be made to a Person (as defined in Section 2.2(a)) other than the Person in whose name the Certificate so surrendered is registered if such Certificate shall be properly endorsed, with signature guaranteed endorsed or otherwise be in proper form for transfer and that the person Person requesting such exchange payment either shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes Taxes (as defined in Section 2.14(a)) required by reason of the issuance of certificates for such shares of IHK Common Stock in payment being made to a name Person other than that of the registered holder of the certificate surrendered, such Certificate or establish to the satisfaction of the Surviving Corporation or its transfer agent Company that such tax has Tax or Taxes have been paid or is are not applicable. Until surrendered as contemplated by this Section 2.10(b)1.9, each certificate for shares of Company Common Stock Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) Consideration, without interest. No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall interest will be paid to or will accrue on the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until Merger Consideration upon the surrender of the certificate for shares any Certificate. Consideration payable in respect of Company Seller Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall OP Units will be paid to as provided in the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockPartnership Merger Agreement.
(d) All cash Merger Consideration paid upon the surrender for exchange of certificates representing shares of Company Common Stock Certificates in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) 1.9 shall be deemed to have been issued (and paid) paid in full satisfaction of all rights pertaining to the shares of Company Seller Common Stock exchanged for cash theretofore Shares or Seller Preferred Shares formerly represented by such certificatesCertificates; provided, however, that Seller shall transfer to the Paying Agent cash sufficient to pay any dividends or make any other distributions with a record date on or prior to the Effective Time which may have been declared or made by Seller on such Seller Common Shares or Seller Preferred Shares, including without limitation any dividends permitted by the second paragraph of Section 5.8 hereof, in accordance with the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the Effective Time and have not been paid prior to such surrender, and there shall be no further registration of transfers on the stock transfer books of Seller of the Seller Common Shares or Seller Preferred Shares which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Section 1.9.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger SubParent, Seller, Buyer, the Company, IHK Surviving Company or the Exchange Paying Agent shall be liable to any person Person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund Merger Consideration delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments portion of the Merger Consideration as contemplated herebydelivered to the Paying Agent pursuant to this Agreement that remains unclaimed for 12 months after the Effective Time shall be redelivered by the Paying Agent to the Surviving Company, IHK upon demand, and any holders of Certificates who have not theretofore complied with Section 1.9(c) shall promptly replace or restore thereafter look only to the portion Surviving Company for delivery of the Exchange Fund lost through investments or Merger Consideration and any unpaid dividends, subject to applicable escheat and other events so similar Laws (as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdefined below).
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 3 contracts
Sources: Merger Agreement (Westbrook Real Estate Partners LLC), Merger Agreement (Alter Robert A), Merger Agreement (Sunstone Hotel Investors Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly Promptly after the Effective Time, IHK but no later than one (1) Business Day following the Closing Date, Intermediate Corp shall deposit cause the aggregate Merger Consideration with the Escrow & Exchange Agent for the benefit to mail or otherwise deliver to each record holder as of the holders Effective Time of certificates or option grants which immediately prior to the Effective Time represented shares of Common Stock or Options, respectively (collectively, the “Certificates”) a letter of transmittal (which shall (i) specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Escrow & Exchange Agent (if such Certificates represent shares of Common Stock) or to the Company (if such Certificates represent Options), and (ii) include provisions appointing the Shareholders’ Representative and acknowledging the obligations of the Equity Holders under ARTICLE X), and instructions for use in effecting the surrender of the Certificates and payment therefor. Upon surrender to the Escrow & Exchange Agent or the Company, as applicable, of a Certificate, together with such letter of transmittal properly completed and duly executed, the holder of such Certificate shall be entitled to the following:
(i) with respect to Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after excluding the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender subject to the Exchange Agent Contribution, an amount in cash equal to the sum of such certificate or certificates and acceptances thereof by (A) the Exchange Agent, be entitled to a certificate or certificates representing product of (i) the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Closing Consideration, if any, into which multiplied by (ii) the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant Certificate, minus, with respect to this Agreement. The Exchange Agent shall accept any Company Shareholder who is party to an Executive Note, the amount of such certificates upon compliance with such reasonable terms and conditions Executive Note outstanding as the Exchange Agent may impose of immediately prior to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on and (B) the records product of (i) any Common Stock Escrow Amount, multiplied by (ii) the Company or its transfer agent number of certificates representing shares of Company Common StockStock represented by such Certificate; and
(ii) with respect to Options, an amount in cash equal to the sum of (A) the product of (i) the Option Closing Consideration, multiplied by (ii) the number of Options represented by such Certificate, and if such certificates are presented to (B) the Surviving Corporation for transfer, they shall be canceled against delivery product of cash and/or certificates for shares of IHK (i) any Common Stock in accordance with this AgreementEscrow Amount, multiplied by (ii) the number of Options represented by such Certificate. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Each Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer cancelled. All payments of Option Closing Consideration and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Closing Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stockcancelled Certificates shall be made by the Escrow & Exchange Agent or the Company, and (ii) at the appropriate payment daterespectively, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock as promptly as reasonably practicable in accordance with Section 3.4(a) from the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Aggregate Merger Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Blackline, Inc.), Merger Agreement (Blackline, Inc.)
Exchange of Certificates. (a) Prior to On or before the mailing Effective Time of the Proxy StatementMerger, IHK Investor shall appoint a bank or trust company cause the Company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent Paying Agent, for the benefit of the holders of shares of Company Common StockShares, for exchange payment in accordance with this Article IIIII, the funds necessary to pay the Cash Merger Price for each Share.
(b) As soon as practicable after the Effective TimeTime of the Merger, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shallShares, upon surrender to the Exchange Paying Agent of such certificate or certificates (or delivery of such customary affidavits and acceptances indemnities with respect to a lost certificate which the Paying Agent and/or the Company's transfer agent may reasonably require) and acceptance thereof by the Exchange Paying Agent, shall be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received Retained Surviving Corporation Shares, if any, to be retained by the holder thereof as Stock Consideration Retained Surviving Corporation Shares pursuant to this Agreement and the Cash Considerationamount of cash, if any, into which the number of shares of Company Common Stock Shares previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Paying Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective TimeTime of the Merger, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockShares which have been converted, in whole or in part, pursuant to this Agreement, into the right to receive cash, and if such certificates are presented to the Surviving Corporation Company for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementsuch cash. If any certificate for such shares of IHK Common Stock Retained Surviving Corporation Shares is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock Shares surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation Company or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock Retained Surviving Corporation Shares in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b3.5(b), each certificate for shares of Company Common Stock Shares shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Cash Merger Consideration as contemplated by Section 2.06Price for each Share (other than any Retained Surviving Corporation Share) and a new certificate for each Retained Surviving Corporation Share.
(c) No dividends or other distributions with respect to shares of IHK Common Stock Retained Surviving Corporation Shares with a record date after the Effective Time of the Merger shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Shares not surrendered with respect to the shares of IHK Common Stock Retained Shares represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock Shares shall be paid to any such holder pursuant to Section 2.10(e3.5(e) until the surrender of the such certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article IIIII. Subject to the effect of applicable lawslaw, following surrender of any such certificatescertificate, these there shall be paid to the holder of the certificate representing whole shares of IHK Common Stock Retained Surviving Corporation Shares issued in connection therewith, without interest (i) at the time of such surrender surrender, the amount of any cash payable in lieu of a fractional shares retained share to which such holder is entitled pursuant to Section 2.10(e3.5(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore of the Merger therefor paid with respect to such shares of IHK Common StockRetained Surviving Corporation Shares, and (ii) at the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time of the Merger but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common StockRetained Surviving Corporation Shares.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock Shares in accordance with the terms of this Article II III (including any cash paid pursuant to Section 2.10(e3.5(e)) shall be deemed to have been issued (and paid) paid in full satisfaction of all rights pertaining to the shares of Company Common Stock Shares exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions provision of this Agreement, each holder of shares of Company Common Stock after Shares retained pursuant to the Effective Time Merger who would otherwise have been entitled to receive as Stock Consideration retain a fraction of a share of IHK Common Stock Retained Surviving Corporation Share (after taking into account all shares of Company Common Stock Shares delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the applicable Cash ConsiderationMerger Price.
(f) Any portion of the Merger Consideration cash deposited with the Exchange Paying Agent pursuant to this Section 2.10 3.5 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months Shares 180 days after the Effective Time of the Merger shall be delivered to IHK, the Surviving Corporation at such time and any holders of shares of Company Common Stock Shares prior to the Effective Time Merger who have not theretofore complied with this Article II III shall thereafter look only to IHK the Surviving Corporation and only as general unsecured creditors thereof for payment of their claim for cash or shares of IHK Common Stockcash, if any.
(g) None of Merger Sub, the Company, IHK Sub or the Exchange Company or the Paying Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock Shares shall not have been surrendered prior to two years after the Effective Time of the Merger (or immediately prior to the such earlier date on which any Merger Consideration cash in respect of such certificate would otherwise escheat to or become the property of any Government AuthorityGovernmental Entity (as defined below)), any such Merger Consideration cash in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Paying Agent shall invest any cash included in the Exchange Fund, as directed by IHKthe Investor, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHKthe Company. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Cash Merger Consideration Price as contemplated hereby, IHK Investor shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Prometheus Senior Quarters LLC), Merger Agreement (Kapson Senior Quarters Corp)
Exchange of Certificates. (a) Prior Upon surrender of a LEAPFROG Stock Certificate to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Transfer Agent for exchange, together with such other documents as may be reasonably required by ALBARA, the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common such LEAPFROG Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and whole ALBARA Shares that such holder has the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted right to receive pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records provisions of the Company or its transfer agent of certificates representing shares of Company Common StockSection 1:7, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common LEAPFROG Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)1:10, each certificate for shares of Company Common LEAPFROG Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Date, to represent only the right to receive upon such surrender the Merger Consideration a certificate representing shares of ALBARA Common Stock as contemplated by Section 2.061:7. If any LEAPFROG Stock Certificate shall have been lost, stolen or destroyed, ALBARA may, in its discretion and as a condition precedent to the issuance of any certificate representing ALBARA Common Stock, require the owner of such lost, stolen or destroyed LEAPFROG Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as ALBARA may reasonably direct) as indemnity against any claim that may be made against ALBARA with respect to such LEAPFROG Stock Certificate.
(cb) No dividends or other distributions declared or made with respect to shares of IHK ALBARA Common Stock with a record date after the Effective Time Date shall be paid to the holder of any unsurrendered certificate for shares of Company Common un-surrendered LEAPFROG Stock Certificate with respect to the shares of IHK ALBARA Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common surrenders such LEAPFROG Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1:7:3 (at which time such certificates, these holder shall be paid entitled to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of receive all such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) dividends and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stockdistributions).
(dc) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) ALBARA shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect holder or former holder of any cash or common stock of LEAPFROG for any shares of IHK ALBARA Common Stock from the Exchange Fund (or dividends or distributions with respect thereto), or for any cash amounts, delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Albara Corp), Merger Agreement (Leapfrog Smart Products Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the ------------------------ Effective Time, the Partnership shall cause the Exchange Agent to send to each holder of record of Corporation Stock immediately prior to the Effective Time transmittal materials (including the Partnership's then-current form of Transfer Application) for use in exchanging Corporation Stock certificates. Each holder of a certificate formerly representing Corporation Stock who surrenders or has surrendered such certificate (or customary affidavits and indemnification regarding the loss or destruction of such certificate) to the Exchange Agent, together with properly executed transmittal materials and an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock executed Transfer Application, shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agentacceptance thereof, be entitled to a certificate Depositary Receipt (or certificates if no Transfer Application is submitted shall be entitled to a Unit Certificate) representing the number of full shares whole Partnership Units to which such holder is entitled (and cash in lieu of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into fractional Partnership Units to which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreementholder would otherwise be entitled). The Exchange Agent shall accept such certificates stock certificate upon compliance with such reasonable and customary terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective TimeThe Partnership shall not be obligated to deliver Unit Certificates, there shall be no further transfer on the records Depositary Receipts, or cash in lieu of fractional Partnership Units to which any former holder of Corporation Stock is entitled as a result of the Company Merger until such holder surrenders his certificate or its transfer agent of certificates representing shares of Company Common StockCorporation Stock (or customary affidavits and indemnification regarding the loss or destruction of such certificate) for exchange, and if such certificates are presented to the Surviving Corporation for transfertogether with properly executed transmittal materials, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock as provided in accordance with this AgreementSection 2.4. If any certificate for such shares of IHK Common Stock Depositary Receipt or Unit Certificate, or any check representing cash and/or declared but unpaid distributions, is to be issued in, or if cash is to be remitted to, in a name other than that in which the a certificate for shares of Company Common Stock surrendered for exchange is registeredissued, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person Person requesting such exchange shall pay affix any requisite stock transfer tax stamps to the Surviving Corporation certificate surrendered or its transfer agent any transfer or other taxes required by reason of the issuance of certificates provide funds for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, their purchase or establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is taxes are not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Mauna Loa Macadamia Partners Lp), Agreement and Plan of Merger (Brewer C Homes Inc)
Exchange of Certificates. (a) Prior From and after the Effective Time, each outstanding certificate which prior to the mailing Effective Time represented shares of Dynegy Common Stock ("Dynegy Certificates") shall be deemed for all purposes to evidence ownership of, and to represent, the shares of Newco Common Stock into which the shares of Dynegy Common Stock represented by such Dynegy Certificate have been converted as herein provided. The registered owner on the books and records of Dynegy or its transfer agent of any such Dynegy Certificate as of the Proxy StatementEffective Time shall, IHK until such Dynegy Certificate shall have been surrendered for transfer or otherwise accounted for to Newco or its transfer agent, have and be entitled to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon the shares of Newco Common Stock evidenced by such Dynegy Certificate as above provided. Following the Effective Time, each holder of record of one or more Dynegy Certificates may, but shall not be required to, surrender any Dynegy Certificate for cancellation to Newco or its transfer agent, and the holder of such Dynegy Certificate shall be entitled to receive in exchange therefor a certificate representing that number of shares of Newco Common Stock which such holder has the right to receive pursuant to the provisions of this Article 4, and the Dynegy Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of shares of Dynegy Common Stock that is not registered in the transfer records of Newco or Dynegy, a certificate representing the proper number of shares of Newco Common Stock may be issued to such a transferee if the Dynegy Certificate representing such shares of Dynegy Common Stock is presented to Newco or its transfer agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid.
(b) As of the Effective Time, Newco shall appoint a bank Mellon Investor Services LLC or trust company such other party reasonably satisfactory to act Enron as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of ), and Newco shall, when and as needed, deposit, or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration cause to be deposited with the Exchange Agent for the benefit of the holders of shares of Company Enron Common Stock, Stock for exchange in accordance with this Article II4, certificates representing the shares of Newco Common Stock to be issued pursuant to Section 4.2 and delivered pursuant to this Section 4.4 in exchange for outstanding shares of Enron Common Stock. When and as needed, Newco shall provide the Exchange Agent immediately following the Effective Time cash sufficient to pay cash in lieu of fractional shares in accordance with Section 4.4(c) and (f) (such cash and certificates for shares of Newco Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Exchange Fund").
(bc) As soon as practicable Promptly after the Effective Time, Newco shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of one or certificates which prior thereto represented more Enron Certificates (together with the Dynegy Certificates, the "Certificates") (other than to holders of shares of Company Enron Common Stock shallthat, pursuant to Section 4.2(c), are canceled without payment of any consideration therefor): (A) a letter of transmittal (the "Letter of Transmittal"), which shall specify that delivery shall be effected, and risk of loss and title to the Enron Certificates shall pass, only upon surrender delivery of the Enron Certificates to the Exchange Agent and shall be in such form and have such other provisions as Newco may reasonably specify and (B) instructions for use in effecting the surrender of the Enron Certificates in exchange for certificates representing shares of Newco Common Stock and cash in lieu of fractional shares, if any. Upon surrender of an Enron Certificate for cancellation to the Exchange Agent together with such Letter of Transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such Enron Certificate shall be entitled to receive in exchange therefor (x) a certificate representing that number of whole shares of Newco Common Stock and (y) a check representing the amount of cash in lieu of fractional shares, if any, and unpaid dividends and distributions, if any, which such holder has the right to receive pursuant to the provisions of this Article 4, after giving effect to any required withholding tax, and the Enron Certificate so surrendered shall forthwith be canceled. No interest will be paid or certificates accrued on the cash in lieu of fractional shares and acceptances thereof by unpaid dividends and distributions, if any, payable to holders of Enron Certificates. In the event of a transfer of ownership of Enron Common Stock that is not registered in the transfer records of Enron, a certificate representing the proper number of shares of Newco Common Stock, together with a check for the cash to be paid in lieu of fractional shares, if any, may be issued to such a transferee if the Enron Certificate representing such Enron Common Stock is presented to the Exchange Agent, be entitled accompanied by all documents required to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration evidence and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by effect such certificate or certificates surrendered shall transfer and to evidence that any applicable stock transfer taxes have been converted pursuant to paid.
(d) Notwithstanding any other provisions of this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer dividends or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, distributions declared or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time made after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Newco Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Enron Certificate with respect to the shares of IHK Newco Common Stock represented thereby and no cash payment by such Enron Certificate as a result of the conversion provided in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e4.2(b) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article IIsuch Enron Certificate is surrendered as provided herein. Subject to the effect of applicable laws, following surrender of any such certificatesEnron Certificate, these there shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewithEnron Certificates so surrendered, without interest interest, (i) at the time of such surrender surrender, the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore payable and not paid with respect to such the number of whole shares of IHK Newco Common StockStock issued pursuant to Section 4.2, less the amount of any withholding taxes, and (ii) at the appropriate payment date, the proportionate 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 IHK Newco Common Stock.
(d) All cash paid upon , less the surrender for exchange amount of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificateswithholding taxes.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock At or after the Effective Time, the Enron Surviving Entity and the Dynegy Surviving Entity shall pay from funds on hand at the Effective Time who would otherwise any dividends or make other distributions with a record date prior to the Effective Time that may have been entitled to receive as Stock Consideration a fraction declared or made by Enron or Dynegy, respectively, on shares of a share of IHK Enron Common Stock (or Dynegy Common Stock, respectively, that remain unpaid at the Effective Time, and after taking into account all the Effective Time, there shall be no transfers on the stock transfer books of the Enron Surviving Entity of the shares of Company Enron Common Stock, or on the stock transfer books of the Dynegy Surviving Entity of the shares of Dynegy Common Stock, that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Enron Certificates are presented to the Enron Surviving Entity or Dynegy Certificates are presented to the Dynegy Surviving Entity, the presented Certificates shall be canceled and exchanged for certificates representing shares of Newco Common Stock delivered by such holder) shall receive, and cash in lieu thereofof fractional shares, if any, deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in this Article 4. Certificates surrendered for exchange by any person constituting an "affiliate" of Dynegy or Enron for purposes of Rule 145(c) under the Securities Act of 1933, as amended (the "Securities Act"), shall not be exchanged until Newco has received a cash payment (without interest) equal to written agreement from such fraction multiplied by the Cash Considerationperson as provided in Section 7.11.
(f) Any portion No fractional shares of Newco Common Stock shall be issued pursuant hereto. In lieu of the Merger Consideration deposited with the Exchange Agent issuance of any fractional shares of Newco Common Stock pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed 4.2(b), cash adjustments will be paid to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any fractional shares of IHK Newco Common Stock from that would otherwise be issuable, and the Exchange Fund delivered amount of such cash adjustment shall be equal to a public office pursuant to any applicable abandoned propertysuch fractional proportion of the Newco Share Price. For purposes of this Agreement, escheat or similar law. If any certificates representing shares the "Newco Share Price" shall mean the average of Company the per share last reported prices of the Dynegy Class A Common Stock shall as reported on the consolidated transaction reporting system for securities traded on the NYSE (as reported in the New York City edition of The Wall Street Journal or, if not have been surrendered immediately reported thereby, another authoritative source) for the 20 consecutive trading days ending on the fifth trading day prior to the date on which Closing Date, appropriately adjusted for any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authoritystock splits, any such Merger Consideration in respect of such certificate shallreverse stock splits, as such time and to the extent permitted by applicable lawstock dividends, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank recapitalizations or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentssimilar transactions.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Enron Corp/Or/), Merger Agreement (Dynegy Inc /Il/)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank each holder of an outstanding certificate representing shares of CEEE Common Stock may, at such stockholder's option, surrender the same for cancellation to Continental Stock Transfer & Trust Company, or trust company to act such other entity as paying the Company so designates as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of CEEE Common Stock Consideration shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation's Common Stock into which such shares of CEEE Common Stock were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in the merger shall bear the same legends, if any, into which with respect to the number restrictions on transferability the certificates of shares CEEE so converted and given in exchange therefore, unless otherwise determined by the Board of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records Directors of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock Atlantic stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Atlantic that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Atlantic International Entertainment LTD), Merger Agreement (Atlantic International Entertainment LTD)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, and in no event later than five (5) business days thereafter, the Exchange Agent shall mail to each holder of an outstanding certificate record of a Certificate or certificates Certificates at the Effective Time a form letter of transmittal (which prior thereto represented shares shall be in such form and have such provisions as the Buyer may reasonably specify and which shall specify that delivery shall be effected, and risk of Company Common Stock shallloss and title to the Certificate shall pass, only upon surrender delivery of the Certificate to the Exchange Agent Agent) and instructions for use in effecting the surrender of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing Certificate in exchange for the number of full shares of IHK Common Stock received as Stock Merger Consideration and the Cash Consideration, if any, into which the number of shares of Company Seller Common Stock previously represented by such certificate Certificate or certificates surrendered Certificates shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms .
(b) Upon surrender of a Certificate for exchange and conditions as cancellation to the Exchange Agent may impose to effect an orderly exchange thereof in accordance Agent, together with normal exchange practices. After a duly executed letter of transmittal, the Effective Time, there holder of such Certificate shall be no further transfer on the records entitled to receive in exchange therefor (x) a certificate representing that number of the Company or its transfer agent of certificates representing whole shares of Company Buyer Common Stock to which such holder of Seller Common Stock shall have become entitled pursuant to the provisions of Articles I and II hereof and (y) a check representing the amount of cash and unpaid dividends and distributions on Buyer Common Stock, and if any, which such certificates are presented holder has the right to receive in respect of the Certificate surrendered pursuant to the Surviving Corporation provisions of Articles I and II hereof, and the Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued to or for transferthe benefit of holders of Certificates on such cash and unpaid dividends and distributions on Buyer Common Stock, they if any.
(c) No dividends or other distributions declared after the Effective Time with respect to Buyer Common Stock and payable to the holders of record thereof shall be canceled against delivery paid to the holder of cash and/or certificates for shares of IHK Common Stock any unsurrendered Certificate until the holder thereof shall surrender such Certificate in accordance with this AgreementArticle II. After the surrender of a Certificate in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the shares of Buyer Common Stock represented by such Certificate. No holder of an unsurrendered Certificate shall be entitled, until the surrender of such Certificate, to vote the shares of Buyer Common Stock into which his Seller Common Stock shall have been converted.
(d) If any certificate for such representing shares of IHK Buyer Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock Certificate surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer transfer, and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Exchange Agent in advance any transfer or other taxes required by reason of the issuance of certificates for such a certificate representing shares of IHK Buyer Common Stock in a any name other than that of the registered holder of the certificate Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b)payable.
(e) After the Effective Time, each certificate for there shall be no transfers on the stock transfer books of the Seller of the shares of Company Seller Common Stock which were issued and outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of shares of Seller Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided herein or by applicable law. If, after the Effective Time, Certificates representing such shares are presented for transfer to the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration as provided in this Article II.
(f) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Buyer Common Stock shall be deemed at issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to Buyer Common Stock shall be payable, on or with respect to any time after fractional share, and such fractional share interests shall not entitle the Effective Time owner thereof to vote or to any other rights of a stockholder of the Merger Seller. In lieu of the issuance of any such fractional share, the Buyer shall pay to represent only each former stockholder of the right Seller who otherwise would be entitled to receive upon a fractional share of Buyer Common Stock an amount in cash determined by multiplying (i) the Average Buyer Common Stock Price by (ii) the fraction of a share of Buyer Common Stock to which such surrender the Merger Consideration as contemplated by holder would otherwise be entitled to receive pursuant to Section 2.061.05 hereof.
(cg) No dividends or other distributions with respect to shares Any portion of IHK the Exchange Fund (including the proceeds of any investments thereof and any Buyer Common Stock with a record date Stock) that remains unclaimed by the stockholders of the Seller for six (6) months after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender Buyer. Any stockholders of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time Seller who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof the Buyer for payment of their claim for cash or the shares of IHK Buyer Common Stock, if any.
(g) None cash and unpaid dividends and distributions on Buyer Common Stock deliverable in respect of Merger Subeach share of Seller Common Stock such stockholder holds as determined pursuant to this Agreement, in each case without any interest thereon. Notwithstanding the foregoing, none of the Buyer, the CompanySeller, IHK or the Exchange Agent nor any other person shall be liable to any person in respect former holder of any cash or any shares of IHK Seller Common Stock from the Exchange Fund for any amount properly delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(h) The Exchange Agent In the event any Certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fund, as directed by IHK, on a daily basis, provided making of an affidavit of that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest fact by the United States person claiming such Certificate to be lost, stolen or destroyed and, if required by the Buyer, upon the posting by such person of America, a bond in such amount as the Buyer may direct as indemnity against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentsCertificate, or the Exchange Fund diminishes Agent will issue in exchange for other reasons below such lost, stolen or destroyed Certificate, the level required shares of Buyer Common Stock and cash (including, if applicable, unpaid dividends and distributions on Buyer Common Stock) deliverable in respect thereof pursuant to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsthis Agreement.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Washington Trust Bancorp Inc), Merger Agreement (First Financial Corp /Ri/)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, and in no event later than ten (10) business days thereafter, the Surviving Corporation shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of one or certificates which prior thereto represented shares of Company more OSB Common Stock shallCertificates a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the OSB Common Stock Certificates shall pass, only upon surrender delivery of the OSB Common Stock Certificates to the Exchange Agent Agent) and instructions for use in effecting the surrender of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK OSB Common Stock received as Certificates in exchange for FCB Common Stock Consideration Certificates and the Cash Consideration, if any, any cash in lieu of fractional shares into which the number of shares of Company OSB Common Stock previously represented by such certificate OSB Common Stock Certificate or certificates surrendered Certificates shall have been converted pursuant to this AgreementAgreement and the Plan of Merger. The Upon proper surrender of an OSB Common Stock Certificate for exchange and cancellation to the Exchange Agent shall accept such certificates upon compliance Agent, together with such reasonable terms and conditions as properly completed letter of transmittal, duly executed, the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there holder of such OSB Common Stock Certificate shall be no further transfer on the records entitled to receive in exchange therefor, as applicable, (i) a FCB Common Stock Certificate representing that number of the Company or its transfer agent of certificates representing whole shares of Company FCB Common StockStock to which such holder of OSB Common Stock shall have become entitled pursuant to the provisions of Section 1.4 hereof, and if (ii) a check representing the amount of any cash in lieu of fractional shares that such certificates are presented holder has the right to the Surviving Corporation for transfer, they shall be canceled against delivery receive in respect of cash and/or certificates for shares of IHK such OSB Common Stock Certificate, and the OSB Common Stock Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any cash in accordance with this Agreement. lieu of fractional shares payable to holders of OSB Common Stock Certificates.
(b) If any certificate for such shares of IHK FCB Common Stock Certificate is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company OSB Common Stock Certificate surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate OSB Common Stock Certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer transfer, and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Exchange Agent in advance any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK an FCB Common Stock Certificate in a any name other than that of the registered holder of the certificate OSB Common Stock Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends After the Effective Time, there shall be no transfers on the stock transfer books of OSB of the shares of OSB Common Stock which were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, OSB Common Stock Certificates are presented for transfer to the Exchange Agent, they shall be canceled and exchanged for FCB Common Stock Certificates representing shares of FCB Common Stock as provided in this Article II.
(d) Notwithstanding anything to the contrary contained herein, no certificates or other distributions scrip representing fractional shares of FCB Common Stock shall be issued upon the surrender for exchange of OSB Common Stock Certificates, no dividend or distribution with respect to shares of IHK FCB 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 record date shareholder of the Surviving Corporation. In lieu of the issuance of any such fractional share, the Surviving Corporation shall pay to each former shareholder of OSB who otherwise would be entitled to receive such fractional share an amount in cash determined by multiplying (i) the average of the last sales price for FCB Common Stock as reported on The Nasdaq Stock Market for the twenty (20) trading days immediately preceding the fifth trading day prior to the Closing Date by (ii) the fraction of a share (rounded to the nearest tenth when expressed as an Arabic number) of FCB Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 1.4.
(e) Any portion of the Conversion Fund that remains unclaimed by the shareholders of OSB for twelve (12) months after the Effective Time shall be paid to the holder Surviving Corporation. Any shareholders of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time OSB who have not theretofore complied with this Article II shall thereafter look only to IHK the Surviving Corporation for the issuance of certificates representing shares of FCB Common Stock and only as general creditors thereof for the payment of their claim for cash or in lieu of any fractional shares and any unpaid dividends and distributions on the FCB Common Stock deliverable in respect of IHK each share of OSB Common StockStock such shareholder holds as determined pursuant to this Agreement and the Plan of Merger, if any.
(g) None in each case, without any interest thereon. Notwithstanding the foregoing, none of Merger SubFCB, the CompanyOSB, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of any cash or any shares of IHK OSB Common Stock from the Exchange Fund Stock, for any amount delivered in good faith to a public office official pursuant to any applicable abandoned property, escheat or similar law. If laws.
(f) In the event any certificates representing shares of Company OSB Common Stock Certificate shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such OSB Common Stock Certificate to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to be lost, stolen or become the property of any Government Authoritydestroyed and, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted if reasonably required by applicable law, become the property of the Surviving Corporation, free and clear the posting by such person of all claims or interest of any person previously entitled thereto.
(h) The a bond in such amount as the Exchange Agent shall invest may determine is reasonably necessary as indemnity against any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentsOSB Common Stock Certificate, or the Exchange Fund diminishes Agent will issue in exchange for other reasons below such lost, stolen or destroyed OSB Common Stock Certificate an FCB Common Stock Certificate representing the level required shares of FCB Common Stock and any cash in lieu of fractional shares deliverable in respect thereof pursuant to make prompt payments this Agreement and the Plan of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsMerger.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (FCB Financial Corp), Merger Agreement (Osb Financial Corp)
Exchange of Certificates. Representing Company Preferred Shares -------------------------------------------------------------- and Company Common Shares. -------------------------
(a) Prior As of the Effective Date, Purchaser shall deposit, or shall cause to be deposited, with an exchange agent selected by Purchaser on or prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent Effective Date (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Preferred Shares and Company Common StockShares, for exchange in accordance with this Article II4, the cash representing the aggregate of the Preferred Merger Price and the Common Merger Price (the "Exchange Fund") to be issued pursuant to Section 4.1 and paid pursuant to this Section 4.2, respectively, in exchange for outstanding Company Preferred Shares and Company Common Shares.
(b) As soon as practicable Promptly after the Effective TimeDate, Purchaser shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of a Certificate or certificates Certificates (i) a letter of transmittal which prior thereto represented shares shall specify that delivery shall be effected, and risk of Company Common Stock shallloss and title to the Certificates shall pass, only upon surrender delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as Purchaser may reasonably specify and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Preferred Merger Price and the Common Merger Price. Upon surrender of a Certificate representing Company Preferred Shares or Company Common Shares for cancellation to the Exchange Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such certificate Certificate representing Company Preferred Shares or certificates Company Common Shares shall be entitled to receive in exchange therefor a check representing cash in the amount of the Preferred Merger Price or Common Merger Price, as appropriate, times the number of Company Preferred Shares or Company Common Shares, respectively, represented by such Certificate(s) less any amount required to be withheld under applicable Federal income tax laws and acceptances thereof regulations, and the Certificate(s) so surrendered shall forthwith be canceled. No interest will be paid or accrued on the cash representing the Preferred Merger Price and the Common Merger Price. In the event of a transfer of ownership of Company Preferred Shares or Company Common Shares which is not registered in the transfer records of the Company, a check representing cash in the amount of the Preferred Merger Price or Common Merger Price, as appropriate, times the number of Company Preferred Shares or Company Common Shares, respectively, represented by such Certificate(s) less any amount required to be withheld under applicable Federal income tax regulations, may be issued to such a transferee if the Certificate representing such Company Preferred Shares or Company Common Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid.
(c) At and after the Effective Date, there shall be entitled no transfers on the stock transfer books of the Company of Company Preferred Shares or Company Common Shares which were outstanding immediately prior to a certificate or the Effective Date. If, after the Effective Date, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for certificates representing for the number amount of full shares of IHK Common Stock received as Stock Consideration and the Cash Considerationcash, if anywithout interest, into which the number of shares of Company Preferred Shares or the Company Common Stock previously Shares theretofore represented by such certificate or certificates surrendered Certificates shall have been converted pursuant to this AgreementArticle IV. The Exchange Agent No interest shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company accrue or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of on any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Preferred Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK Price or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoPrice.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Eastgroup Properties Inc), Merger Agreement (Eastgroup Properties Inc)
Exchange of Certificates. (a) Prior to After the mailing Effective Time of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company Common Stock shalleMagin-Nevada common stock may be asked to surrender the same for cancellation to an exchange agent, upon surrender whose name will be delivered to such holders prior to any requested exchange (the Exchange Agent of such certificate or certificates and acceptances thereof by the "Exchange Agent"), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received the Surviving Corporation's common stock into which such holders' shares of eMagin-Nevada common stock were converted as Stock Consideration herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of eMagin-Nevada common stock shall be deemed for all purposes to represent the Cash Considerationnumber of whole shares of the Surviving Corporation's common stock into which such shares of eMagin-Nevada common stock were converted in the Merger.
(b) The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided in this Article III.
(c) Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of eMagin-Nevada so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreement. applicable laws.
(d) If any certificate for such shares of IHK Common Stock eMagin-Delaware common stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to eMagin-Delaware or the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent eMagin-Delaware that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Emagin Corp), Merger Agreement (Emagin Corp)
Exchange of Certificates. (a) Prior At or prior to the mailing Effective Time, First Community shall (i) authorize the issuance of the Proxy Statement, IHK and shall appoint make available to a bank or trust company reasonably acceptable to First Community and the Minority Bank to act as paying exchange agent hereunder (the "“Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time”), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, Minority Bank Stock Certificates for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK First Community Common Stock in accordance with this Agreement. If any certificate for such shares of IHK (the “First Community Stock Certificates”) to be issued pursuant to Section 2.1, to the extent First Community Common Stock is to be issued inin non-book entry form, and (ii) shall deposit with the Escrow Agent sufficient cash for payment of cash in lieu of any fractional shares of First Community Common Stock in accordance with Section 2.2. Such First Community Stock Certificates and cash are referred to in this Article II as the “Conversion Fund.” First Community shall be solely responsible for the payment of any fees and expenses of the Exchange Agent.
(b) Within ten business days after the Closing Date, First Community shall cause the Exchange Agent to mail to each holder of record of one or if cash more certificates for shares of Minority Bank Common Stock (the “Minority Bank Stock Certificates”) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to Minority Bank Stock Certificates shall pass, only upon delivery of such certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Minority Bank Stock Certificates pursuant to this Agreement.
(c) Upon proper surrender of a Minority Bank Stock Certificate for exchange to the Exchange Agent, together with such properly completed letter of transmittal, duly executed, the holder of such Minority Bank Stock Certificate shall be entitled to receive in exchange therefor his or her portion of the Merger Consideration deliverable in respect of the shares of Minority Bank Common Stock represented by such Minority Bank Stock Certificate, and such Minority Bank Stock Certificate shall forthwith be canceled. No interest will be paid or accrued on the Merger Consideration deliverable upon surrender of a Minority Bank Stock Certificate.
(d) If any First Community Stock Certificate is to be remitted to, issued in a name other than that in which the certificate for shares of Company Common Minority Bank Stock Certificate surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate Minority Bank Stock Certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer transfer, and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Exchange Agent in advance any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common a First Community Stock Certificate in a any name other than that of the registered holder of the certificate Minority Bank Stock Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificatespayable.
(e) Notwithstanding any other provisions After the Effective Time, there shall be no transfers on the stock transfer books of this Agreement, each holder the Minority Bank of the shares of Company Minority Bank Common Stock after that were issued and outstanding immediately prior to the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash ConsiderationTime.
(f) Any portion of the Merger Consideration deposited with Conversion Fund that remains unclaimed by the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders stockholders of the certificates representing shares of Company Common Stock Minority Bank for six twelve months after the Effective Time shall be delivered paid to IHKFirst Community, and any holders or its successors in interest. Any stockholders of shares of Company Common Stock prior to the Effective Time Minority Bank who have not theretofore complied with this Article II shall thereafter look only to IHK First Community, or its successors in interest, for the issuance of certificates representing shares of First Community Common Stock and only as general creditors thereof for the payment of their claim for cash or in lieu of any fractional shares and any unpaid dividends and distributions on First Community Common Stock deliverable in respect of IHK each share of Minority Bank Common StockStock such stockholder holds as determined pursuant to this Agreement. Notwithstanding the foregoing, if any.
(g) None none of Merger SubFirst Community, the Company, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of any cash or any shares of IHK Minority Bank Common Stock from the Exchange Fund or outstanding Minority Bank equity awards, for any amount delivered in good faith to a public office official pursuant to any applicable abandoned property, escheat or similar law. If laws.
(g) In the event any certificates representing shares of Company Common Minority Bank Stock Certificate shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Minority Bank Stock Certificate to be lost, stolen or destroyed and, if reasonably required by the date on which Surviving Bank, the posting by such person of a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Minority Bank Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Minority Bank Stock Certificate, and in accordance with Article II, the Per Share Merger Consideration and cash in lieu of any fractional shares deliverable in respect of such certificate would otherwise escheat thereof pursuant to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretothis Agreement.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank No dividends or other financial institution having capital, surplus distributions declared with respect to First Community Common Stock and undivided profits payable to the holders of at least $500,000,000. Any interest and other income resulting from such investments record thereof after the Effective Time shall be paid to IHKthe holder of any unsurrendered Minority Bank Stock Certificate until the holder thereof shall surrender such Minority Bank Stock Certificate in accordance with this Article II. To Promptly after the extent that there are losses surrender of a Minority Bank Stock Certificate in accordance with this Article II, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of First Community Common Stock represented by such investmentsMinority Bank Stock Certificate. No holder of an unsurrendered Minority Bank Stock Certificate shall be entitled, or until the Exchange Fund diminishes for other reasons below surrender of such Minority Bank Stock Certificate, to vote the level required to make prompt payments shares of the Merger Consideration as contemplated hereby, IHK First Community Common Stock into which Minority Bank Common Stock shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentshave been converted.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (First Community Financial Partners, Inc.), Merger Agreement (First Community Financial Partners, Inc.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank At or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each Castelle will send to the holders of Ibex Stock Certificates (i) a letter of transmittal in customary form and containing such provisions as Castelle may reasonably specify, and (ii) instructions for use in effecting the surrender of Ibex Stock Certificates in exchange for certificates representing Castelle Common Stock. Upon surrender of a Ibex Stock Certificate to Castelle for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by ▇▇▇▇▇▇▇▇, the holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common such Ibex Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full whole shares of IHK Castelle Common Stock received as Stock Consideration and that such holder has the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted right to receive pursuant to the provisions of this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockSection 1, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Ibex Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)1.8, each certificate for shares of Company Common Ibex Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive upon such surrender the Merger Consideration a certificate representing shares of Castelle Common Stock (and cash in lieu of any fractional share of Castelle Common Stock) as contemplated by this Section 2.061.8. If any Ibex Stock Certificate shall have been lost, stolen or destroyed, Castelle may, in its discretion and as a condition precedent to the issuance of any certificate representing Castelle Common Stock, require the owner of such lost, stolen or destroyed Ibex Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Castelle may reasonably direct) as indemnity against any claim that may be made against the Surviving Corporation with respect to such Ibex Stock Certificate.
(cb) No dividends or other distributions declared or made with respect to shares of IHK Castelle Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Ibex Stock Certificate with respect to the shares of IHK Castelle Common Stock represented thereby thereby, and no cash payment in lieu of any fractional shares of IHK Common Stock share shall be paid to any such holder, until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common surrenders such Ibex Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1.8 (at which time such certificates, these holder shall be paid entitled to the holder of the certificate representing whole receive all such dividends and distributions and such cash payment).
(c) No fractional shares of IHK Castelle Common Stock shall be issued in connection therewithwith the Merger, and no certificates for any such fractional shares shall be issued. In lieu of such fractional shares, any holder of capital stock of Ibex who would otherwise be entitled to receive a fraction of a share of Castelle Common Stock (after aggregating all fractional shares of Castelle Common Stock issuable to such holder) shall, upon surrender of such holder's Ibex Stock Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest (i) at interest, determined by multiplying such fraction by the time Designated Castelle Stock Price. For purposes of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment datethis paragraph, the proportionate amount "Designated Castelle Stock Price" shall be eight dollars ($8.00) per share 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 IHK Castelle Common Stock.
(d) All cash paid upon the surrender for exchange The Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of certificates representing shares capital stock of Company Common Stock in accordance with the terms of this Article II (including any cash paid Ibex pursuant to Section 2.10(e)) this Agreement such amounts as the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be deemed treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) The Surviving Corporation shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect holder or former holder of any cash or capital stock of Ibex for any shares of IHK Castelle Common Stock from the Exchange Fund (or dividends or distributions with respect thereto), or for any cash amounts, delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Exchange of Certificates. Each outstanding certificate theretofore representing shares of Cyberfund common stock that are not Dissenting Shares (athe “Non-Dissenting Shares”) Prior shall be deemed for all purposes to represent the mailing number of whole shares of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment ROK common stock into which such Non-Dissenting Shares of Cyberfund common stock were converted in the Merger Considerationand the holder thereof shall not be required to surrender such certificate for a certificate issued by ROK. As of or promptly However, after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit Date of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented shares representing Non-Dissenting Shares of Company Common Cyberfund common stock may, at such stockholder’s option and sole discretion, surrender the same for cancellation to OTC Stock shallTransfer Co., upon surrender to as the Exchange Agent sole stock transfer and registrar of such certificate or certificates the Cyberfund common stock and acceptances thereof by as exchange agent therefor (the “Exchange Agent”), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received the ROK common stock into which the surrendered shares were converted as Stock Consideration herein provided. The registered owner on the books and records of ROK or the Cash ConsiderationExchange Agent of any such outstanding certificate representing Non-Dissenting Shares of Cyberfund common stock shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Cyberfund so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock ROK stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent ROK that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Cyberfund, Inc.), Merger Agreement (Rok Entertainment Group Inc.)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank or trust company each holder of an outstanding certificate representing shares of RasterOps Common Stock may, at such stockholder's option, surrender the same for cancellation to act First Interstate Bank, as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the surrendered shares were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of RasterOps Common Stock shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock previously represented by into which such shares of RasterOps Common Stock were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further surrendered for transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented conversion or otherwise accounted for to the Surviving Corporation for transferor the Exchange Agent, they shall have and be canceled against delivery of cash and/or certificates for entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of IHK Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in accordance the Merger shall bear the same legends, if any, with this Agreementrespect to the restrictions on transferability as the certificates of RasterOps so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation. If any certificate for such shares of IHK Common Stock Truevision stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Truevision that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Rasterops), Merger Agreement (Rasterops)
Exchange of Certificates. (a) Prior Except as otherwise provided in Section 3.1(c) or by the MGCL, from and after the Effective Time, all CCMH Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing shares of CCMH Common Stock shall cease to have any rights with respect thereto, except the mailing of the Proxy Statementright to receive in exchange therefor, IHK shall appoint upon surrender thereof to a bank or trust company designated by EChapman and acceptable to act as paying agent CCMH (the "Exchange Agent") ), a certificate representing EChapman Shares to which such holder is entitled pursuant to Section 3.1 plus the Fractional Share Payment. Notwithstanding any other provision of this Agreement, until holders or transferees of certificates theretofore representing shares of CCMH Common Stock have surrendered them for the payment of the Merger Consideration. As of exchange as provided herein, no dividends or promptly other distributions declared or made after the Effective Time, IHK Time with respect to EChapman Shares with a record date after the Effective Time shall deposit be paid with respect to any EChapman Shares represented by such certificates and no Fractional Share Payment shall be made. Upon surrender of a certificate which immediately prior to the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of Effective Time represented shares of Company CCMH Common Stock, for exchange there shall be paid to the holder of such certificate by EChapman without interest, (i) promptly, the amount of any Fractional Share Payment with respect to a fractional EChapman Share to which such holder is entitled, (ii) except as provided in accordance (iii), below, the amount of dividends or other distributions (without interest) with this Article IIa record date after the Effective Time which theretofore became payable with respect to whole EChapman Shares, and (iii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole EChapman Shares.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is EChapman Shares are to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company CCMH Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay have paid to EChapman or the Surviving Corporation or its transfer agent Exchange Agent any applicable transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06issuance.
(c) No dividends As of the Effective Time, EChapman shall deposit, or other cause to be deposited, with the Exchange Agent, for the account of Merger Subsidiary, the number of EChapman Shares required to effect the exchanges referred to in paragraph (a) above, and cash for purposes of the Fractional Share Payment. EChapman shall thereafter from time to time deposit, or cause to be deposited, with the Exchange Agent cash for payment of any dividend or distributions with in respect to shares of IHK Common Stock such EChapman Shares with a record date after the Effective Time.
(d) As soon as reasonably practicable after the Effective Time, EChapman or the Surviving Corporation shall cause the Exchange Agent to mail to each holder of record as of the Effective Time of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of CCMH Common Stock (the "CCMH Certificates"), whose shares were converted into the right to receive EChapman Shares (i) a letter of transmittal (which shall specify that delivery shall be paid effected, and risk of loss and title to CCMH Certificates shall pass, only upon delivery of CCMH Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of CCMH Certificates in exchange for EChapman Shares. Upon surrender of a CCMH Certificate for cancellation to the Exchange Agent, together with a duly executed letter of transmittal, the holder of any unsurrendered such CCMH Certificate shall be entitled to receive in exchange therefor a certificate for representing that number of whole EChapman Shares into which the shares of Company CCMH Common Stock theretofore represented by CCMH Certificates so surrendered shall have been converted pursuant to the provisions of Section 3.1, and CCMH Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of CCMH Common Stock for any EChapman Shares or dividends or distributions thereon delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(e) Promptly following the date which is six (6) months after the Effective Time, EChapman or the Surviving Corporation shall cause the Exchange Agent to deliver to EChapman all certificates, property and other documents in its possession relating to the transactions described in this Agreement. Thereafter, each holder of a CCMH Certificate may surrender such CCMH Certificate to EChapman and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor a certificate representing EChapman Shares to which such person is entitled, any dividends or distributions with respect to the shares EChapman Shares and any Fractional Share Payment, in each case without any interest thereon. Notwithstanding the foregoing, none of IHK the Exchange Agent, EChapman, Merger Subsidiary, or the Surviving Corporation shall be liable to a holder of CCMH Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid for any EChapman Shares delivered to any such holder a public official pursuant to Section 2.10(eapplicable abandoned property, escheat and similar laws.
(f) until In the surrender event any CCMH Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the certificate for shares person claiming such CCMH Certificate to be lost, stolen or destroyed, and the posting of Company Common Stock a bond by such person in such amount as EChapman may direct as indemnity against any claim that may be made against it or the Exchange Agent with respect to such CCMH Certificate, the shares Exchange Agent, EChapman or the Surviving Corporation, as the case may be, shall issue in exchange for such lost, stolen or destroyed CCMH Certificate, a certificate representing the proper number of IHK Common Stock represented thereby EChapman Shares deliverable in respect thereof determined in accordance with this Article II. Subject to Section 3.3, and cash for the effect of applicable laws, following surrender of Fractional Share Payment and any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of other dividends or other distributions in respect of EChapman Shares with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockTime.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Echapman Com Inc), Merger Agreement (Echapman Com Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMilestone Date, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock Parent shall notify the Rights Agent and the Rights Agent shall, upon being provided with the notice and instructions for surrender referred to below. promptly thereafter mail to all Holders of record of CVRs that were converted into the right to receive CVR Consideration (i) notice of the occurrence of the Milestone and (ii) instructions for surrendering their CVR Certificates in exchange for a certificate representing shares of Parent Common Stock and cash in lieu of fractional shares. Upon surrender of CVR Certificates for cancellation to the Exchange Agent Rights Agent, together with a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss of, and title to, the CVR Certificates shall pass, only upon delivery of the CVR Certificates to the Rights Agent) and other requested documents and in accordance with the instructions thereon, the Holder of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificates shall be entitled to receive in exchange therefor (a) a certificate or certificates representing the that number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously CVRs theretofore represented by such certificate or certificates the CVR Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementAgreement and (b) a check in the amount of any cash due pursuant to Section 4.1(b) or Section 4.4. The Exchange Agent No interest shall accept be paid or shall accrue on any such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof amounts. Until surrendered in accordance with normal exchange practicesthe provisions of this Section, each CVR Certificate shall represent for all purposes only the right to receive CVR Consideration and, if applicable, amounts under Section 4.4. After Shares of Parent Common Stock into which the Effective Time, there CVRs shall be no further transfer converted at the Milestone Date shall be deemed to have been issued on the records of the Company or its transfer agent of Milestone Date. Subject to Section 6 hereof, if any certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Parent Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is are to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock CVR Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall deliver to the Rights Agent all documents necessary to evidence and effect such transfer and shall pay to the Surviving Corporation or its transfer agent Rights Agent any transfer or other taxes required by reason of the issuance of certificates for such a certificate representing shares of IHK Parent Common Stock in a name other than that of the registered holder Holder of the certificate CVR Certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent Rights Agent that such tax has been paid or is not applicable. Until surrendered Beginning the date which is six months following the Milestone Date, Parent shall act as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at the Rights Agent and thereafter any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of an unsurrendered CVR Certificate shall look solely to Parent for any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares amounts to which such holder is entitled pursuant Holder may be due, subject to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) applicable law. Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any any portion of the Merger CVR Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months remaining unclaimed five years after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash Milestone Date (or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered such earlier date immediately prior to the date on which any Merger Consideration in respect of such certificate time as such amounts would otherwise escheat to to, or become the property of any Government Authorityof, any such Merger Consideration in respect of such certificate shall, as such time and governmental entity) shall be returned to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoParent.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Osi Pharmaceuticals Inc), Merger Agreement (Cell Pathways Inc /De)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company SVI Nevada Common Stock shallor Preferred Stock may be asked to surrender the same for cancellation to an exchange agent, upon surrender whose name will be delivered to such holders prior to any requested exchange (the Exchange Agent of such certificate or certificates and acceptances thereof by the "Exchange Agent"), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received or Preferred Stock, as the case may be, into which such holders' shares of SVI Nevada Common Stock Consideration or Preferred Stock were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of SVI Nevada Common Stock or Preferred Stock shall be deemed for all purposes to represent the Cash Considerationnumber of whole shares of the Surviving Corporation's Common Stock or Preferred Stock, as the case may be, into which such shares of SVI Nevada Common Stock or Preferred Stock were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock or Preferred Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock or Preferred Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of SVI Nevada so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock SVI Delaware stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to SVI Delaware or the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent SVI Delaware that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Svi Solutions Inc), Merger Agreement (Svi Solutions Inc)
Exchange of Certificates. On or after the effective date of the merger, each holder of a certificate theretofore evidencing outstanding shares of common stock of CASINO (a) Prior other than shares held by dissenting stockholders and shares that are automatically cancelled as hereinafter provided), upon surrender of the same to the mailing transfer agent of such other agent or agents as shall be appointed by AIC, shall be entitled to receive in exchange therefor a certificate or certificates evidencing the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (pro-rata number of full AIC shares for which the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) common stock of CASINO theretofore represented by the certificate or certificates so surrendered and exchanged. As soon as practicable after the Effective Timeeffective date of the merger, the Transfer Agent will send a notice and transmittal form to each holder of an outstanding certificate or certificates which immediately prior thereto represented to the effective time of such merger evidenced shares of Company Common Stock shallcommon stock of CASINO and which is to be exchanged for AIC as provided for herein, upon surrender advising such stockholder of the terms of the exchange effected by such merger and the procedure for surrendering to the Exchange Transfer Agent (which may appoint forwarding agents) such certificate for exchange into one or more certificates evidencing AIC shares. Until so surrendered, each outstanding certificate which, prior to the effective date of such certificate or certificates and acceptances thereof merger, represented common stock of CASINO (other than shares previously held by dissenting stockholders) will be deemed for all corporate purposes of AIC to evidence ownership of the Exchange Agent, be entitled to a certificate or certificates representing the pro-rata number of full AIC shares for which the shares of IHK Common Stock received common stock of CASINO represented thereby were exchanged; provided, however, that until such outstanding certificates formerly evidencing common stock of CASINO are surrendered, no dividend payable to holders of record of AIC shares as Stock Consideration and of any date subsequent to the Cash Consideration, if any, into which the number effective date of shares such merger or any cash in lieu of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted any fraction of a AIC share payable pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time 1,05 hereof shall be paid to the holder of any unsurrendered certificate for shares such outstanding certificates in respect thereof. After the effective date of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock such merger there shall be paid to any such holder pursuant to Section 2.10(e) until no further registry of transfers on the surrender records of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder CASINO of shares of Company Common Stock after the Effective Time who would otherwise have been entitled common stock of CASINO and, if a certificate evidencing such shares is presented to receive as Stock Consideration AIC, it shall be canceled and exchanged for a fraction of a share of IHK Common Stock (after taking into account all certificate evidencing shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash ConsiderationAIC common stock as herein provided.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Aviation Industries Corp), Merger Agreement (Aviation Industries Corp)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after After the Effective Time, IHK shall deposit the aggregate Merger Consideration with Time and pursuant to a customary letter of transmittal or other instructional form provided by the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by RIDGEFIELD DEVELOPMENT CORPORATION Shareholders, the RIDGEFIELD DEVELOPMENT CORPORATION Shareholders shall be required to surrender all their RIDGEFIELD DEVELOPMENT CORPORATION Common stock to the Exchange Agent, and the RIDGEFIELD DEVELOPMENT CORPORATION Shareholders shall be entitled upon such surrender to a certificate or receive in exchange therefor certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, Exchange Shares into which the number of shares of Company RIDGEFIELD DEVELOPMENT CORPORATION Common Stock previously stock theretofore represented by such certificate or certificates the stock transfer forms so surrendered shall have been converted exchanged pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose Until so surrendered, each outstanding certificate, which, prior to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company represented RIDGEFIELD DEVELOPMENT CORPORATION Common Stockstock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after for all corporate purpose, subject to the Effective Time further provisions of this Article I, to evidence the ownership of the Merger number of whole Stock Exchange Shares for which such RIDGEFIELD DEVELOPMENT CORPORATION Common stock have been so exchanged. No dividend payable to represent only the right holders of Stock Exchange Shares of record as of any Date subsequent to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder owner of any unsurrendered certificate for shares which, prior to the Effective Time, represented RIDGEFIELD DEVELOPMENT CORPORATION Common stock, until such certificate or certificates representing all the relevant RIDGEFIELD DEVELOPMENT CORPORATION Common stock, together with a stock transfer form, are surrendered as provided in this Article I or pursuant to letters of Company Common Stock transmittal or other instructions with respect to lost certificates provided by the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockExchange Agent.
(db) All cash paid upon Stock Exchange Shares for which the surrender for exchange of certificates representing shares of Company RIDGEFIELD DEVELOPMENT CORPORATION Common Stock in accordance with the terms of stock shall have been exchanged pursuant to this Article II (including any cash paid pursuant to Section 2.10(e)) I shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company RIDGEFIELD DEVELOPMENT CORPORATION Common Stock exchanged for cash theretofore represented by such certificatesstock.
(ec) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after On the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction Date, the stock transfer book of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time RIDGEFIELD DEVELOPMENT CORPORATION shall be delivered deemed to IHK, be closed and any holders no transfer of shares of Company RIDGEFIELD DEVELOPMENT CORPORATION Common Stock prior to the Effective Time who have not theretofore complied with this Article II stock shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anybe recorded thereon.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Stock Exchange Agreement (Four Star Holdings, Inc.), Stock Exchange Agreement (Four Star Holdings, Inc.)
Exchange of Certificates. (a) Prior to the mailing Each outstanding certificate theretofore representing shares of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent Zen Pottery common stock that are not Dissenting Shares (the "Exchange AgentNon-Dissenting Shares") shall be deemed for all purposes to represent the payment number of whole shares of the Xethanol common stock into which such Non-Dissenting Shares of Zen Pottery common stock were converted in the Merger Considerationand the holder thereof shall not be required to surrender such certificate for a certificate issued by Xethanol. As of or promptly However, after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit Date of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented shares representing Non-Dissenting Shares of Company Common Zen Pottery common stock may, at such stockholder's option and sole discretion, surrender the same for cancellation to Corporate Stock shallTransfer, upon surrender to Inc., as the Exchange Agent sole stock transfer and registrar of such certificate or certificates the Zen Pottery common stock and acceptances thereof by as exchange agent therefor (the "Exchange Agent"), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received the Xethanol common stock into which the surrendered shares were converted as Stock Consideration herein provided. The registered owner on the books and records of Xethanol or the Cash ConsiderationExchange Agent of any such outstanding certificate representing Non-Dissenting Shares of Zen Pottery common stock shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Zen Pottery so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock Xethanol stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Xethanol that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Zen Pottery Equipment Inc), Merger Agreement (Zen Pottery Equipment Inc)
Exchange of Certificates. (a) Prior Except as otherwise provided in Section 3.1(c) or by the MGCL, from and after the Effective Time, all CHI Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing shares of CHI Common Stock shall cease to have any rights with respect thereto, except the mailing of the Proxy Statementright to receive in exchange therefor, IHK shall appoint upon surrender thereof to a bank or trust company designated by EChapman and acceptable to act as paying agent CHI (the "Exchange Agent") ), a certificate representing EChapman Shares to which such holder is entitled pursuant to Section 3.1 plus the Fractional Share Payment. Notwithstanding any other provision of this Agreement, until holders or transferees of certificates theretofore representing shares of CHI Common Stock have surrendered them for the payment of the Merger Consideration. As of exchange as provided herein, no dividends or promptly other distributions declared or made after the Effective Time, IHK Time with respect to EChapman Shares with a record date after the Effective Time shall deposit be paid with respect to any EChapman Shares represented by such certificates and no Fractional Share Payment shall be made. Upon surrender of a certificate which immediately prior to the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of Effective Time represented shares of Company CHI Common Stock, for exchange there shall be paid to the holder of such certificate by EChapman without interest, (i) promptly, the amount of any Fractional Share Payment with respect to a fractional EChapman Share to which such holder is entitled, (ii) except as provided in accordance (iii), below, the amount of dividends or other distributions (without interest) with this Article IIa record date after the Effective Time which theretofore became payable with respect to whole EChapman Shares, and (iii) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole EChapman Shares.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is EChapman Shares are to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company CHI Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay have paid to EChapman or the Surviving Corporation or its transfer agent Exchange Agent any applicable transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06issuance.
(c) No dividends As of the Effective Time, EChapman shall deposit, or other cause to be deposited, with the Exchange Agent, for the account of Merger Subsidiary, the number of EChapman Shares required to effect the exchanges referred to in paragraph (a) above, and cash for purposes of the Fractional Share Payment. EChapman shall thereafter from time to time deposit, or cause to be deposited, with the Exchange Agent cash for payment of any dividend or distributions with in respect to shares of IHK Common Stock such EChapman Shares with a record date after the Effective Time.
(d) As soon as reasonably practicable after the Effective Time, EChapman or the Surviving Corporation shall cause the Exchange Agent to mail to each holder of record as of the Effective Time of a certificate or certificates that immediately prior to the Effective Time represented outstanding shares of CHI Common Stock (the "CHI Certificates"), whose shares were converted into the right to receive EChapman Shares (i) a letter of transmittal (which shall specify that delivery shall be paid effected, and risk of loss and title to CHI Certificates shall pass, only upon delivery of CHI Certificates to the Exchange Agent), and (ii) instructions for use in effecting the surrender of CHI Certificates in exchange for EChapman Shares. Upon surrender of a CHI Certificate for cancellation to the Exchange Agent, together with a duly executed letter of transmittal, the holder of any unsurrendered such CHI Certificate shall be entitled to receive in exchange therefor a certificate for representing that number of whole EChapman Shares into which the shares of Company CHI Common Stock theretofore represented by CHI Certificates so surrendered shall have been converted pursuant to the provisions of Section 3.1, and CHI Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of CHI Common Stock for any EChapman Shares or dividends or distributions thereon delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(e) Promptly following the date which is six (6) months after the Effective Time, EChapman or the Surviving Corporation shall cause the Exchange Agent to deliver to EChapman all certificates, property and other documents in its possession relating to the transactions described in this Agreement. Thereafter, each holder of a CHI Certificate may surrender such CHI Certificate to EChapman and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor a certificate representing EChapman Shares to which such person is entitled, any dividends or distributions with respect to the shares EChapman Shares and any Fractional Share Payment, in each case without any interest thereon. Notwithstanding the foregoing, none of IHK the Exchange Agent, EChapman, Merger Subsidiary, or the Surviving Corporation shall be liable to a holder of CHI Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid for any EChapman Shares delivered to any such holder a public official pursuant to Section 2.10(eapplicable abandoned property, escheat and similar laws.
(f) until In the surrender event any CHI Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the certificate for shares person claiming such CHI Certificate to be lost, stolen or destroyed, and the posting of Company Common Stock a bond by such person in such amount as EChapman may direct as indemnity against any claim that may be made against it or the Exchange Agent with respect to such CHI Certificate, the shares Exchange Agent, EChapman or the Surviving Corporation, as the case may be, shall issue in exchange for such lost, stolen or destroyed CHI Certificate, a certificate representing the proper number of IHK Common Stock represented thereby EChapman Shares deliverable in respect thereof determined in accordance with this Article II. Subject to Section 3.3, and cash for the effect of applicable laws, following surrender of Fractional Share Payment and any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of other dividends or other distributions in respect of EChapman Shares with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockTime.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Echapman Com Inc), Merger Agreement (Echapman Com Inc)
Exchange of Certificates. (a) Prior to the mailing As of the Proxy StatementEffective Time, IHK Kramont shall appoint a bank deposit, or trust company shall cause to act as paying be deposited, with an exchange agent selected by Kramont, which shall be KRT Trust's transfer agent or such other party reasonably satisfactory to KRT Trust and CV (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of KRT Trust Common Shares, KRT Trust Preferred Shares and shares of Company CV Common Stock, for exchange in accordance with this Article II4, certificates representing Kramont Common Shares or Kramont Preferred Shares, as the case may be (such certificates for Kramont Common Stock and Kramont Preferred Shares, being hereinafter referred to as the "Exchange Fund"), to be issued pursuant to Section 4.1 in exchange for outstanding KRT Trust Common Shares, KRT Trust Preferred Shares and shares of CV Common Stock.
(b) As soon as practicable Promptly after the Effective Time, Kramont shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of one or certificates more KRT Trust Common Certificates, CV Common Certificates and KRT Trust Preferred Certificates (i) a letter of transmittal which prior thereto represented shares shall specify that delivery shall be effected, and risk of Company loss and title to the KRT Trust Common Stock shallCertificates, CV Common Certificates or KRT Trust Preferred Certificates, as the case may be, shall pass, only upon surrender delivery of the KRT Trust Common Certificates, CV Common Certificates or KRT Trust Preferred Certificates, as the case may be, to the Exchange Agent and shall be in such form and have such other provisions as KRT Trust and CV may reasonably specify and (ii) instructions for use in effecting the surrender of the KRT Trust Common Certificates, CV Common Certificates or KRT Trust Preferred Certificates, as the case may be, in exchange for certificates representing shares of Kramont Common Stock or Kramont Preferred Stock, as the case may be. Subject to the first sentence of Section 4.2(c) upon surrender of a KRT Trust Common Certificate, CV Common Certificate or KRT Trust Preferred Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such KRT Trust Common Certificate, CV Common Certificate or KRT Trust Preferred Certificate, as the case may be, shall be entitled to receive in exchange therefor a certificate representing the number of Kramont Common Shares or certificates Kramont Preferred Shares, as the case may be, which such holder has the right to receive in respect of the KRT Trust Common Certificate, CV Common Certificate or KRT Trust Preferred Certificate, as the case may be, surrendered pursuant to the provisions of this Article 4, in each case after giving effect to any required withholding tax, and acceptances thereof by the KRT Trust Common Certificate, CV Common Certificate or KRT Trust Preferred Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of KRT Trust Common Shares, shares of CV Common Stock or KRT Trust Preferred Shares which is not registered in the transfer records of KRT Trust or CV, as the case may be, a certificate representing the proper number of Kramont Common Shares or Kramont Preferred Shares, as the case may be, may be issued to such a transferee if the KRT Trust Common Certificate, CV Common Certificate or KRT Trust Preferred Certificate, as the case may be, representing shares of such KRT Trust Common Shares, shares of CV Common Stock or KRT Trust Preferred Shares, as the case may be, are presented to the Exchange Agent, be entitled accompanied by all documents required to a certificate evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid.
(c) Notwithstanding the foregoing, holders of KRT Trust Common Certificates, CV Common Certificates and KRT Trust Preferred Certificates who do not surrender their KRT Trust Common Certificates, CV Common Certificates or certificates representing KRT Trust Preferred Certificates, as the number of full shares of IHK Common Stock received as Stock Consideration case may be, for cancellation to the Exchange Agent in accordance with this Section 4.2(c) shall, until December 31, 2001 (the "Tender Deadline Date"), continue to receive dividends and the Cash Considerationdistributions, if any, on the Kramont Common Shares or Kramont Preferred Shares into which the number of such KRT Trust Common Shares, shares of Company CV Common Stock previously represented by such certificate or certificates surrendered and KRT Trust Preferred Shares shall have been converted pursuant to this AgreementSection 4.1. The Exchange Agent Distributions on Kramont Common Shares and Kramont Preferred Shares payable after the Tender Deadline Date shall accept such certificates upon compliance with such reasonable terms not be paid to holders ("Non-Tendering Holders") of KRT Trust Common Certificates, CV Common Certificates and conditions KRT Trust Preferred Certificates who do not surrender their KRT Trust Common Certificates, CV Common Certificates and KRT Trust Preferred Certificates, as the Exchange Agent case may impose be, for cancellation prior to effect an orderly exchange thereof in accordance with normal exchange practices. After the Tender Deadline Date, but rather shall be paid by Kramont, without interest, to such Non-Tendering Holders at the time such Non-Tendering Holders surrender their KRT Trust Common Certificates, CV Common Certificates or KRT Trust Preferred Certificates, as the case may be, for cancellation pursuant to this Section 4.2(c).
(d) At and after the Effective Time, there shall be no further transfer transfers on the records stock transfer books of KRT Trust of the Company KRT Trust Common Shares or its KRT Trust Preferred Shares which were outstanding immediately prior to the Effective Time. At and after the Effective Time, there shall be no transfers on the stock transfer agent books of certificates representing CV of the shares of Company CV Common StockStock which were outstanding immediately prior to the Effective Time. If, and if such certificates after the Effective Time, any KRT Trust Common Certificates, CV Common Certificates or KRT Trust Preferred Certificates are presented to the Surviving Corporation for transferKramont, they shall be canceled against delivery of cash and/or cancelled and exchanged for certificates for shares of IHK Kramont Common Stock Shares or Kramont Preferred Shares, as the case may be, deliverable in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder thereof pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock Agreement in accordance with the terms of procedures set forth in this Article II (including 4. KRT Trust Common Certificates, CV Common Certificates and KRT Trust Preferred Certificates surrendered for exchange by any cash paid pursuant to person constituting an "affiliate" of KRT Trust or CV for purposes of Rule 145(c) under the Securities Act, shall not be exchanged until Kramont has received a written agreement from such person as provided in Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates8.11.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company No fractional Kramont Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) Shares shall receive, in be issued pursuant hereto. In lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent issuance of any fractional Kramont Common Shares to holders of KRT Trust Common Shares pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed 4.1(i), cash adjustments will be paid to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any fractional Kramont Common Share that would otherwise be issuable, and the amount of such cash or any shares adjustment shall be equal to such fractional proportion of IHK the "Average Price" of a common share of beneficial interest, $.01 par value per share of Kranzco (a "Kranzco Common Share"). The "Average Price" of a Kranzco Common Share, shall be the closing sale price thereof on the New York Stock from Exchange (the Exchange Fund delivered to a public office pursuant to any applicable abandoned property"NYSE") (as reported by The Wall Street Journal or, escheat or similar law. If any certificates representing shares of Company Common Stock shall if not have been surrendered immediately prior to reported thereby, by another authoritative source) on the date trading day on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investmentsEffective Time occurs, or if the Exchange Fund diminishes for other reasons below Effective Time is not a trading day, then on the level required to make prompt payments of trading day immediately preceding the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsEffective Time.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Cv Reit Inc), Merger Agreement (Kranzco Realty Trust)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As promptly as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly practicable after the Effective Time (but in any event within thirty (30) days following the Effective Time), IHK Parent shall deposit cause the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange Parent Preferred A Stock issuable pursuant to Section 1.5(a)(i) to be issued in accordance with this Article IIcertificated or book-entry form at Parent’s election.
(b) As soon as practicable after Prior to the Effective Time, each Parent will mail or otherwise provide to the Persons who were record holders of Company Capital Stock immediately prior to the Effective Time instructions for use in effecting the surrender of Company Stock Certificates in exchange for book-entry or certificated shares representing Parent Common Stock; provided, however, that, at the Company’s discretion, such instructions may be provided to record holders of Company Capital Stock by the Company prior to the Effective Time. Upon surrender of a Company Stock Certificate to Parent for exchange, together with such other documents as may be reasonably required by Parent: (A) the holder of an outstanding certificate or certificates which prior thereto represented shares of such Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to a certificate receive in exchange therefor, book-entry or certificates certificated shares representing the number of full whole shares of IHK Common Series A Preferred Stock received as Stock Consideration and that such holder has the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted right to receive pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms the provisions of Section 1.5(a)(i); and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of (B) the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)Section, each certificate for shares of Company Common Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive upon shares of Series A Preferred Stock pursuant to the provisions of Section 1.5(a)(i). If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition to the issuance of any book-entry or certificated shares representing Series A Preferred Stock, require the owner of such surrender the Merger Consideration as contemplated by Section 2.06lost, stolen or destroyed Company Stock Certificate to provide an appropriate lost affidavit with respect to such Company Stock Certificate.
(c) No dividends or other distributions declared or made with respect to shares of IHK Common Series A Preferred Stock with a record date after the Effective Time shall be paid or otherwise delivered to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Common Series A Preferred Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any that such holder pursuant has the right to Section 2.10(e) receive in the Merger until the surrender of the certificate for shares of such holder surrenders such Company Common Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject Section 1.7 (at which time such holder shall be entitled, subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar lawlaws, to receive all such dividends and distributions, without interest).
(d) Each of Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or non-U.S. Tax law or under any other applicable Legal Requirement. If To the extent such amounts are so deducted or withheld and paid to or deposited with the appropriate Governmental Body, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Parent shall take commercially reasonable efforts to reduce or eliminate any certificates representing shares required withholding.
(e) Neither Parent nor the Surviving Corporation shall be liable to any holder or former holder of Company Common Stock shall not have been surrendered immediately prior or to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses Person with respect to such investmentsany shares of Series A Preferred Stock (or dividends or distributions with respect thereto), or the Exchange Fund diminishes for other reasons below the level required any cash amounts, delivered to make prompt payments of the Merger Consideration as contemplated herebyany public official pursuant to any applicable abandoned property law, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments escheat law or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentssimilar Legal Requirement.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (iHookup Social, Inc.), Merger Agreement (iHookup Social, Inc.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementEffective Time, IHK Parent shall appoint designate a bank or law firm, commercial bank, trust company or other financial institution, which may include Parent's stock transfer agent, to act as paying exchange agent (the "Exchange Agent") for in the payment of the Merger Consideration. As of or promptly after Merger.
(b) Promptly at the Effective Time, IHK Parent shall deposit the aggregate Merger Consideration with make available to the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As II the aggregate number of shares of Parent Common Stock issuable pursuant to Section 2.1 in exchange for outstanding shares of Company Common Stock. At the Effective Time or as soon as thereafter practicable after the Effective Time, the Parent shall cause to be mailed to each holder of an outstanding record of a certificate or certificates which immediately prior thereto to the Effective Time represented outstanding shares of Company Common Stock shall(the "Certificates")
(i) a letter of transmittal (which shall specify that delivery shall be effected, upon surrender and risk of loss and title to the Exchange Agent Certificates shall pass, only upon proper delivery of such certificate or certificates and acceptances thereof by the Certificates to the Exchange Agent, and shall be in such form and have such other provisions as Parent may reasonably specify and which shall be reasonably acceptable to the Company) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed, and such other documents as may be reasonably required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange a certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration to which such holder is entitled pursuant to Section 2.1, and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall forthwith be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)2.3, each certificate Certificate that, prior to the Effective Time, represented shares of Company Common Stock will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends, to evidence the right to receive the number of full shares of Parent Common Stock into which such shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) have been so converted. No dividends or other distributions declared or made after the Effective Time with respect to shares of IHK Parent Common Stock with a record date after the Effective Time shall will be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Parent Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the holder of record of such Certificate shall surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article IIsuch Certificate. Subject to the effect of applicable lawslaw, following surrender of any such certificatesCertificate, these there shall be paid to the record holder of the certificate certificates representing whole shares of IHK Parent Common Stock issued in connection therewithexchange therefor, without interest (i) interest, at the time of such surrender surrender, the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Parent Common Stock.
(dc) All cash paid upon At the surrender for exchange Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Common Stock thereafter on the records of the Company. From and after the Effective Time, the holders of certificates representing shares of Company Common Stock in accordance with outstanding immediately prior to the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) Effective Time shall be deemed cease to have been issued (and paid) in full satisfaction of all any rights pertaining with respect to the such shares of Company Common Stock exchanged for cash theretofore represented except as otherwise provided in this Agreement or by such certificateslaw.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Sattel Global Networks Inc), Merger Agreement (Sattel Global Networks Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementMerger Effective Time, IHK Yuma or Yuma Delaware shall appoint a bank or trust company an agent, reasonably satisfactory to the Company, to act as paying exchange agent (the "“Exchange Agent"”) for the payment exchange of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or stock certificates representing the number of full shares of IHK Common Stock received as Stock Merger Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent surrender of certificates representing shares of Company Common StockStock and Company Preferred Stock (the “Company Certificates”) or, and if with respect to uncertificated shares, such certificates are presented other evidence of ownership as the Exchange Agent or Yuma Delaware may reasonably request. At or prior to the Surviving Corporation Merger Effective Time, Yuma Delaware shall deposit or cause to be deposited with the Exchange Agent in trust for transfer, they shall be canceled against delivery the benefit of cash and/or the Company Stockholders (i) certificates for representing the shares of IHK Yuma Delaware Common Stock in accordance with this Agreement. If any certificate for such (or make appropriate alternative arrangements if uncertificated shares of IHK Yuma Delaware Common Stock is represented by a book entry will be issued) and (ii) certificates representing the shares of Yuma Delaware Series D Preferred Stock (or make appropriate alternative arrangements if uncertificated shares of Yuma Delaware Series D Preferred Stock represented by a book entry will be issued), sufficient, in each case, to be issued inexchange upon the surrender of Company Certificates, together with a properly completed form of letter of transmittal, as hereinafter provided.
(b) Promptly after the Merger Effective Time, Yuma Delaware shall cause the Exchange Agent to mail to each individual, corporation, limited liability company, partnership, association, joint venture, unincorporated organization, trust, joint venture, association, or if cash is to be remitted toany other entity, including a Governmental Entity (each, a name other than that in which “Person”), who was a record holder as of the certificate for Merger Effective Time of shares of Company Common Stock or Company Preferred Stock, and whose shares were converted into the Merger Consideration pursuant to Section 2.06, a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent, and which shall be in such form and shall have such other customary provisions as Yuma Delaware may reasonably specify) and instructions for use in effecting the surrender of the Company Certificates in exchange for stock certificates representing the Merger Consideration. Upon surrender to the Exchange Agent of a Company Certificate or, with respect to uncertificated shares of Company Common Stock or Company Preferred Stock, such other evidence of ownership as the Exchange Agent or Yuma Delaware may reasonably request, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Exchange Agent, the record holder of such shares of Company Common Stock or Company Preferred Stock shall receive, in exchange therefor, either (i) certificates representing the shares of Yuma Delaware Common Stock (or make appropriate alternative arrangements if uncertificated shares of Yuma Delaware Common Stock represented by a book entry will be issued) or (ii) certificates representing the shares of Yuma Delaware Series D Preferred Stock (or make appropriate alternative arrangements if uncertificated shares of Yuma Delaware Series D Preferred Stock represented by a book entry will be issued), as applicable, and such Company Certificate shall forthwith be canceled. If delivery of the Merger Consideration is to be made to a Person other than the Person in whose name the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Company Certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed or otherwise be in proper form for transfer and that the person Person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes Taxes required by reason of the issuance transfer or payment of certificates for such shares of IHK Common Stock in the Merger Consideration to a name Person other than that of the registered holder of the certificate surrendered, Company Certificate surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Yuma Delaware that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in In accordance with the terms Bylaws of this Article II the Company, the Company (including any cash paid pursuant to Section 2.10(e)and the Surviving Company) shall be deemed entitled to have been issued (and paid) in full satisfaction treat the registered owner of all rights pertaining to of the shares of Company Common Stock exchanged or Company Preferred Stock as the owner thereof, and after the Merger Effective Time, as the owner of the Merger Consideration, for cash theretofore represented all purposes, until the Company Certificates representing such shares (and such Merger Consideration) have been surrendered by such certificatesthe registered owner thereof in accordance with the provisions of this Section 2.08 (other than Company Certificates representing Excluded Shares and other than Company Certificates representing Dissenting Shares).
(ec) Notwithstanding any other provisions At the close of this Agreementbusiness on the day of the Merger Effective Time, each holder the stock ledger of the Company shall be closed. From and after the Merger Effective Time, there shall be no registration of transfers of shares of Company Common Stock or Company Preferred Stock which were outstanding immediately prior to the Merger Effective Time on the stock transfer books of the Surviving Company. From and after the Merger Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receiveTime, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock and Company Preferred Stock outstanding immediately prior to the Merger Effective Time who shall cease to have not theretofore complied any rights with respect to such shares of Company Common Stock and Company Preferred Stock except as otherwise provided in this Agreement or by applicable Law, and instead shall be owners of the Merger Consideration. If, after the Merger Effective Time, Company Certificates are presented to Yuma Delaware or the Surviving Company for any reason, such Company Certificates shall be cancelled and exchanged as provided in this Article II II.
(d) If any Company Certificate shall thereafter have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if reasonably required by Yuma Delaware, the posting by such Person of a bond, in such reasonable amount as Yuma Delaware may direct, as indemnity against any claim that may be made against it with respect to such Company Certificate, the Exchange Agent will deliver, in exchange for such lost, stolen or destroyed Company Certificate, (i) certificates representing the shares of Yuma Delaware Common Stock (or make appropriate alternative arrangements if uncertificated shares of Yuma Delaware Common Stock represented by a book entry will be issued) or (ii) certificates representing the shares of Yuma Delaware Series D Preferred Stock (or make appropriate alternative arrangements if uncertificated shares of Yuma Delaware Series D Preferred Stock represented by a book entry will be issued), as applicable, as contemplated by this Article II.
(e) If the aggregate number of shares of Yuma Delaware Common Stock or Yuma Delaware Series D Preferred Stock to which a Company Stockholder would otherwise be entitled under this Agreement would include a fractional share of Yuma Delaware Common Stock or Yuma Delaware Series D Preferred Stock, then the number of shares of Yuma Delaware Common Stock or Yuma Delaware Series D Preferred Stock that such Company Stockholder is entitled to receive will be (i) if equal to or greater than one-half (0.5), rounded up to the next whole applicable share, and (ii) if less than one-half (0.5), rounded down to the next whole applicable share, and such Company Stockholder will not receive cash or any other compensation in lieu of such fractional share of Yuma Delaware Common Stock or Yuma Delaware Series D Preferred Stock.
(f) At any time after 180 days after the Merger Effective Time, Yuma Delaware shall be entitled to require the Exchange Agent to return certificates representing the Merger Consideration which had been deposited by Yuma or Yuma Delaware, as the case may be, with the Exchange Agent and not exchanged for Company Certificates. Thereafter, former holders of shares of Company Common Stock and Company Preferred Stock shall look only to IHK and only as general creditors thereof Yuma Delaware for payment of their claim stock certificates representing the Merger Consideration in exchange for cash or shares of IHK Common Stock, if any.
(g) Company Certificates. None of Merger SubYuma Delaware, the Company, IHK the Surviving Company or the Exchange Agent shall be liable to any person holder of a share of Company Common Stock or Company Preferred Stock for any Merger Consideration delivered in respect of any cash or any shares such share of IHK Company Common Stock from the Exchange Fund delivered or Company Preferred Stock to a public office official pursuant to any applicable abandoned property, escheat or other similar law. If any certificates representing Law.
(g) As required by applicable Law, Yuma Delaware and the Exchange Agent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable to a holder of shares of Company Common Stock shall not have been surrendered immediately prior or Company Preferred Stock pursuant to this Agreement such amounts as may be required to be deducted and withheld with respect to the date on which making of such payment under the Code, or under any Merger Consideration provision of state, local or foreign Tax Law. To the extent amounts are so withheld and paid over to the appropriate taxing authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time deduction and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretowithholding was made.
(h) The Exchange Agent shall invest any cash included in If, between the Exchange Funddate of this Agreement and the Merger Effective Time, as directed by IHK, on a daily basis, provided that such investments the shares of Yuma Delaware Common Stock or Yuma Delaware Series D Preferred Stock shall be in obligations changed or proposed to be changed into a different number or class of shares by reason of the United States occurrence of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses record date with respect to any reclassification, recapitalization, split-up, combination, exchange of shares or similar readjustment, in any such investmentscase within such period, or the Exchange Fund diminishes for other reasons below the level required a stock dividend thereon shall be declared with a record date within such period, appropriate adjustments shall be made to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsConsideration.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Yuma Energy, Inc.), Agreement and Plan of Merger and Reorganization (Yuma Energy, Inc.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective TimeTime of the Merger, IHK Sub shall deposit the aggregate Merger Consideration with the Exchange Paying Agent as necessary, for the benefit of the holders of shares of Company Common Stock, for exchange payment in accordance with this Article II4, the funds necessary to pay the Cash Merger Price (less the Stock Election Consideration if the Stock Election is exercised) for each share.
(b) As soon as practicable after the Effective TimeTime of the Merger, (i) each holder of an outstanding certificate or certificates which prior thereto represented pursuant to Section 4.2 represent the right to receive shares of Company Common Stock shallthe Surviving Corporation, upon surrender to the Exchange Paying Agent of such certificate or certificates and acceptances acceptance thereof by the Exchange paying agent selected by Sub (the "Paying Agent"), shall be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Roll-Over Share Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock Roll-Over Shares previously represented by such certificate or certificates surrendered shall have been converted pursuant to this AgreementAgreement and (ii) each other holder of an outstanding certificate or certificates which prior hereto represented shares of Company Common Stock (other than Roll-Over Shares), upon surrender to a paying agent selected by Sub (the "Paying Agent") of such certificate or certificates and acceptance thereof by the Paying Agent, shall be entitled to receive in exchange therefor either (A) the Cash Merger Price multiplied by the number of shares of Company Common Stock formerly represented by such certificate or (B) if the Stock Election is exercised, (x) the Cash Merger Price (less the Stock Election Consideration) multiplied by the number of Stock Election Shares formerly represented by such certificate and (y) a certificate or certificates representing the Stock Election Consideration multiplied by the number of Stock Election Shares formerly represented by such certificate divided by the Cash Merger Price, and the certificate shall forthwith be cancelled. No interest will be paid on or accrue on the Cash Merger Price. The Exchange Paying Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective TimeTime of the Merger, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockStock which have been converted, in whole or in part, pursuant to this Agreement, into the right to receive cash, and if such certificates are presented to the Surviving Corporation Company for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementsuch cash. If any certificate or certificates for such shares of IHK Common Roll-Over Share Consideration or Stock Election Consideration, if applicable, is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation Company or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Roll-Over Share Consideration or Stock Election Consideration, if applicable, in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b4.4(b), (i) each certificate for shares of Company Common Stock Roll-Over Shares shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration a new certificate or certificates for each Roll-Over Share, as contemplated by Section 2.064.2(b) and (ii) each certificate for shares of Company Common Stock (other than the Roll-Over Shares) shall be deemed at any time after the Effective Time of the Merger to represent (A) only the right to receive upon such surrender the Cash Merger Price for each share of Company Common Stock or (B) if the Stock Election is exercised, the right to receive upon such surrender (x) the Cash Merger Price (less the Stock Election Consideration) for each Stock Election Share and (y) a new certificate or certificates for each Stock Election Share, as contemplated by Section 4.2(a).
(c) No dividends or other distributions with respect to shares of IHK Common Roll-Over Shares or Stock Election Shares, if applicable, with a record date after the Effective Time of the Merger shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock not surrendered with respect to the shares of IHK Common Roll-Over Shares or the Stock Election Shares, if applicable, represented thereby and no cash payment in lieu of fractional shares of IHK Company Common Stock shall be paid to any such holder pursuant to Section 2.10(e4.4(e) until the surrender of the such certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II4. Subject to the effect of applicable lawslaw, following surrender of any such certificatescertificate, these there shall be paid to the holder of the certificate or certificates representing whole shares of IHK Common issued for the Roll-Over Share Consideration or Stock issued in connection therewithElection Consideration, if applicable, without interest (i) at the time of such surrender surrender, the amount of any cash payable in lieu of a fractional shares share representing the Roll-Over Share Consideration or the Stock Election Consideration, if applicable, to which such holder is entitled pursuant to Section 2.10(e4.4(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore of the Merger therefor paid with respect to such shares of IHK Common Stockrepresenting the Roll-Over Share Consideration or the Stock Election Consideration, if applicable, and (ii) at the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time of the Merger but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stockrepresenting the Roll-Over Share Consideration and the Stock Election Consideration, if applicable.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II 4 (including any cash paid pursuant to Section 2.10(e4.4(e)) shall be deemed to have been issued (and paid) paid in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions provision of this Agreement, each holder of shares of Company Common Roll-Over Shares or Stock after the Effective Time Election Shares who would otherwise have been entitled to receive as Stock Consideration retain a fraction of a share of IHK Common representing the Roll-Over Share Consideration or the Stock Election Consideration (after taking into account all shares of Company Common Roll-Over Shares and Stock Election Shares, as the case may be, delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash ConsiderationMerger Price.
(f) Any portion of the Merger Consideration cash deposited with the Exchange Paying Agent pursuant to this Section 2.10 4.4 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months 180 days after the Effective Time of the Merger shall be delivered to IHK, the Surviving Corporation at such time and any holders of shares of Company Common Stock (other than Roll- Over Shares) prior to the Effective Time Merger who have not theretofore complied with this Article II 4 shall thereafter look only to IHK the Surviving Corporation and only as general unsecured creditors thereof for payment of their claim for cash or shares of IHK Common Stockcash, if any.
(g) None of Merger Sub, the Company, IHK Company or the Exchange Paying Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered prior to one year after the Effective Time of the Merger (or immediately prior to the such earlier date on which any Merger Consideration cash in respect of such certificate would otherwise escheat to or become the property of any Government Authorityfederal, state, local, or municipal, foreign or other government or subdivision, branch, department or agency thereof and any governmental or quasi-governmental authority of any nature, including any court or other tribunal (each a "Governmental Entity")), any such Merger Consideration cash in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent In the event any certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fund, as directed by IHK, on a daily basis, provided making of an affidavit of that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest fact by the United States person claiming such certificate to be lost, stolen or destroyed and, if required by Surviving Corporation, the posting by such person of America, a bond in such reasonable amount as Surviving Corporation may direct as indemnity against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentscertificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed certificate the shares representing the Roll-Over Share Consideration or the Stock Election Consideration, as the case may be (and cash in lieu of fractional shares), and unpaid dividends and distributions on shares representing the Roll-Over Share Consideration and the Stock Election Consideration, if applicable, deliverable in respect thereof pursuant to this Agreement, or cash, as the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentscase may be.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (MTL Inc), Merger Agreement (Apollo Investment Fund Iii Lp)
Exchange of Certificates. (a) Prior After the Effective Date of the Merger, each holder of an outstanding certificate representing shares of Common Stock of Parent may, at such stockholder's option, surrender the same for cancellation to the mailing of the Proxy Statement, IHK shall appoint a bank Surviving Corporation or trust company to act as paying its transfer agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Common Stock of Parent shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock, as adjusted pursuant to Section 3.1 above, into which such shares of Common Stock previously represented by such certificate or certificates surrendered shall have been of Parent were converted pursuant to this Agreementin the Merger. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms registered owner on the books and conditions as records of the Surviving Corporation or the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Timeof any such outstanding certificate shall, there shall be no further until such certificate has been surrendered for transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented conversion or otherwise accounted for to the Surviving Corporation for transferor the Exchange Agent, they shall have and be canceled against delivery of cash and/or certificates for entitled to exercise voting and other rights with respect to and to receive dividends and other distributions upon the shares of IHK Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in accordance the Merger shall bear the same legends, if any, with this Agreementrespect to restrictions on transferability as the certificates of Parent so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificate for such shares of IHK Common Stock Subsidiary stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Subsidiary that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Interplay Entertainment Corp), Merger Agreement (Interplay Entertainment Corp)
Exchange of Certificates. (a) Prior to the mailing of Closing, the Proxy Statement, IHK Company shall appoint a First Union National Bank or another bank or trust company located in the United States which is reasonably satisfactory to the Company to act as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after At the Effective Time-------------- Closing, IHK the Stockholders shall cause the Company to deposit the aggregate Merger Consideration with the Exchange Agent Agent, for the benefit of the holders of shares of the Company Common Stock, other than the Company or any Subsidiary of the Company or the Parent, Newco or any other Subsidiary of the Parent, for exchange in accordance with this Article II.Section 2.8, cash in an amount equal to the aggregate Merger Consideration projected to be paid hereunder (the "Exchange Fund"). -------------
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of the Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by to the Exchange Agent, be entitled to a certificate or certificates representing the number amount of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, cash into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of the Company Common Stock, Stock and if such certificates are presented to the Surviving Corporation Company for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementthe applicable Merger Consideration. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash Merger Consideration is to be remitted to, to a name other than that in which the certificate for shares of the Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed guaranteed, or otherwise in proper form for transfer and that the person Person (as defined in Section 9.5) requesting such exchange shall pay to the Surviving Corporation Company or its transfer agent any transfer or other taxes required by reason of the issuance payment of certificates for such shares of IHK Common Stock in Merger Consideration to a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation Parent or its transfer agent that such tax has been paid or is not applicable. Until surrendered surrender as contemplated by this Section 2.10(b2.3(b), each certificate for shares of the Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 2.062.7. No interest will be paid or will accrue on any amount payable as Merger Consideration.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash Merger Consideration paid upon the surrender for exchange of certificates representing shares of the Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) 2.8 shall be deemed to have been issued (and paid) paid in full satisfaction of all rights pertaining to the shares of the Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(fd) Any portion of the Merger Consideration deposited with Exchange Fund (including any interest and other income received by the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund"in respect of all such funds) which remains undistributed to the holders of the certificates representing shares of the Company Common Stock for six months one year after the Effective Time shall be delivered to IHKthe Surviving Corporation, upon demand, and any holders of shares of the Company Common Stock prior to the Effective Time Merger who have not theretofore complied with this Article II Section 2.8 shall thereafter look only to IHK and only as general creditors thereof the Surviving Corporation for payment of their claim for cash or shares of IHK Common Stock, if anyMerger Consideration to which such holders may be entitled.
(ge) None of Merger Sub, the Company, IHK or the Exchange Agent No party to this Agreement shall be liable to any person Person (as defined in Section 9.5) in respect of any cash or any shares of IHK Common Stock amount from the Exchange Fund delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If , if any certificates representing shares of the Company Common Stock shall not have been surrendered in exchange for Merger Consideration prior to one year after the Effective Time (or immediately prior to the such earlier date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authoritygovernmental entity), and any such Merger Consideration in respect of such certificate amount shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person Person previously entitled thereto.
(hf) The Exchange Agent shall invest any cash the cash, included in the Exchange Fund, Fund as directed by IHKthe Parent, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments investment shall be the property of, and paid to IHK. To the extent Parent.
(g) In the event any certificate or certificates representing shares of the Company Common Stock or shall have been lost, stolen or destroyed, upon the making of an affidavit of that there are losses fact by the Person claiming such certificate or certificates to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration deliverable in respect thereof as determined in accordance with this Section 2.8, provided that the Person to whom the Merger Consideration is paid shall, if requested by the Surviving Corporation and as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such reasonable amount as it may direct or otherwise indemnify the Surviving Corporation in a manner satisfactory to it against any claim that may be made against the Surviving Corporation with respect to such investmentsthe certificate claimed to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Firstamerica Automotive Inc /De/), Agreement and Plan of Merger and Reorganization (Price Thomas A)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As soon as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly reasonably practicable after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent shall mail to each holder of record of a Certificate immediately prior to the Effective Time whose shares of Company Common Stock were converted into the right to receive shares of Acquiror Common Stock pursuant to Section 2.1 a customary form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) containing instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon proper surrender of a Certificate for exchange and cancellation to the Exchange Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration which such holder has the right to receive in respect of the shares of Company Common Stock formerly represented by such Certificate and such Certificate so surrendered shall forthwith be cancelled. No interest will be paid or accrued for the benefit of the holders of shares the Certificates on the Merger Consideration payable upon the surrender of the Certificates. Notwithstanding anything to the contrary contained in this Agreement, any holder of Company Common Stock, for exchange Stock that holds such shares in accordance with this book-entry form (rather than through a Certificate) shall not be required to deliver a Certificate or an executed letter of transmittal to the Exchange Agent in order to receive the Merger Consideration that such holder is entitled to receive pursuant to Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Acquiror Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Acquiror Common Stock represented thereby that such holder would be entitled to receive upon surrender of such Certificate and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) 2.2 until the such holder shall surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby such Certificate in accordance with this Article IIIII. Subject to After the effect of applicable laws, following surrender of a Certificate in accordance with this Article III, such holder thereof entitled to receive shares of Acquiror Common Stock shall be entitled to receive any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions distributions, without any interest thereon, with a record date after the Effective Time and which theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 had become payable with respect to whole Acquiror Common Stock issuable to such whole shares holder in respect of IHK Common Stocksuch Certificate.
(c) If the payment of the Merger Consideration is to be made to a person other than the registered holder of the Certificate surrendered in exchange therefor, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such payment shall pay to the Exchange Agent in advance any applicable stock transfer or other Taxes or shall establish to the reasonable satisfaction of the Exchange Agent that such Taxes have been paid or are not payable.
(d) All cash paid upon At and after the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) Effective Time, there shall be deemed to have been issued (and paid) in full satisfaction no transfers on the stock transfer books of all rights pertaining to the Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for cash theretofore represented by such certificatesthe Merger Consideration as provided in this Article III.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration property deposited with the Exchange Agent pursuant to this Section 2.10 (3.1 that remains unclaimed by the "Exchange Fund") which remains undistributed to the holders stockholders of the certificates representing shares of Company Common Stock for six nine (9) months after the Effective Time shall be delivered paid, at the request of Acquiror, to IHK, and any holders or as directed by Acquiror. Any stockholders of shares of the Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II III shall thereafter look only to IHK and only as general creditors thereof Acquiror for payment of their claim for the Merger Consideration (including cash or shares in lieu of IHK fractional shares) and unpaid dividends and distributions on the Acquiror Common StockStock deliverable in respect of each share of Company Common Stock held by such stockholder at the Effective Time as determined pursuant to this Agreement, if any.
(g) None in each case, without any interest thereon. Notwithstanding anything to the contrary contained herein, none of Merger SubAcquiror, the Company, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of any cash or any shares of IHK Company Common Stock from the Exchange Fund for any amount properly delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoLaws.
(hf) The Exchange Agent In the event any Certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fund, as directed by IHK, on a daily basis, provided making of an affidavit of that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest fact by the United States person claiming such Certificate to be lost, stolen or destroyed and, if required by Acquiror, the posting by such person of America, a bond in such amount as Acquiror or one of its Subsidiaries may determine is reasonably necessary as indemnity against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentsCertificate, or the Exchange Fund diminishes Agent will issue in exchange for other reasons below the level required to make prompt payments of such lost, stolen or destroyed Certificate the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as deliverable in respect thereof pursuant to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsthis Agreement.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (People's United Financial, Inc.), Merger Agreement (Financial Federal Corp)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of At or promptly after following the Effective Time, IHK Buyer shall deposit the aggregate Merger Consideration deposit, or cause to be deposited with the Exchange Agent for the benefit of holders of shares of Company Common Stock and Company OP Units, cash and certificates representing shares of Class B Stock or cash, Notes and certificates representing the shares of Class B Stock, as the case may be, constituting the Merger Consideration. For purposes of this Section 1.5, holders of Company OP Units shall be treated in the same manner as holders of shares of Company Common Stock, for exchange except as provided in accordance with this Article IIthe last sentence of Section 1.5(b) hereof.
(b) As soon as practicable after of or promptly after, and in any event not later than five business days following, the Effective Time, the Surviving Entity shall cause the Exchange Agent to mail (and to make available for collection by hand) to each holder of an outstanding record of a certificate or certificates certificates, which immediately prior thereto to the Effective Time represented outstanding shares of Company Common Stock shall(the "Certificates"), (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon surrender proper delivery of the Certificates to the Exchange Agent and which shall be in the form and have such other provisions as Buyer and the Company may reasonably specify) and (ii) instructions for use in effecting the surrender of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to Certificates in exchange for (A) a certificate or certificates representing the number of full shares of IHK Common Class B Stock received as Stock Consideration and the Cash ConsiderationNotes, if any, into which all or a portion of the number of shares of Company Common Stock previously represented by such certificate Certificate have been converted pursuant to this Agreement and (B) the amount of cash, if any, into which all or certificates surrendered a portion of the number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this AgreementAgreement (which instructions shall provide that at the election of the surrendering holder, Certificates may be surrendered, and the Merger Consideration in exchange therefor collected, by hand delivery). Upon surrender of a Certificate for cancellation to the Exchange Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate, to be mailed (or made available for collection by hand if so elected by the surrendering holder) within three business days of receipt thereof (or, in the case of any holders that surrender Certificates with a Form of Election prior to the calculation of the Cash Proration Factor and the Non-Cash Proration Factor, three business days after such calculation), and the Certificate so surrendered shall be forthwith cancelled. The Exchange Agent shall accept such certificates Certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there No interest shall be no further transfer paid or accrued for the benefit of holders of the Certificates on the records Merger Consideration payable upon the surrender of the Company Certificates, or its transfer agent of certificates representing shares for the Merger Consideration deliverable to the holder of Company Common Stock, and if such certificates are presented OP Units pursuant to the Surviving Corporation following sentence, except for transferinterest accruing on the Notes in accordance with their terms. Immediately following delivery to the Exchange Agent of the Merger Consideration contemplated by Section 1.5(a) hereof, the Exchange Agent shall cause to be delivered to the holders of Company OP Units the Merger Consideration that they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock are entitled in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.Article I.
(c) No dividends or other distributions with respect to shares of IHK Common Class B Stock or interest with respect to the Notes, as the case may be, with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Class B Stock and Notes represented thereby or to the holder of any Company OP Units by reason of the conversion of shares of Company Common Stock represented thereby and Company OP Units pursuant to Sections 1.2(a), 1.3 and 1.4 hereof and no cash payment in lieu of fractional shares of IHK Common Stock or Fractional Notes shall be paid to any such holder pursuant to Section 2.10(e1.5(d) hereof until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby such Certificate in accordance with this Article III or the delivery of the Merger Consideration to the holders of Company OP Units pursuant to the last sentence of Section 1.5(b). Subject to the effect of applicable laws, following surrender of any such certificatesCertificate or concurrently with such delivery, these there shall be paid to the holder of Person in whose name the certificate representing whole shares of IHK Common Class B Stock issued in connection therewith, without interest and Notes are registered (i) at the time of such surrender or delivery or as promptly after the sale of the Excess Shares or Excess Notes (as defined in Section 1.5(d) hereof) as practicable, the amount of any cash payable in lieu of fractional shares of Class B Stock or Fractional Notes to which such holder is entitled pursuant to Section 2.10(e1.5(d) hereof and the proportionate amount of dividends or other distributions or interest with a record date after the Effective Time theretofore paid with respect to such shares Class B Stock or Notes issued upon conversion of IHK Company Common StockStock and Company OP Units, and (ii) at the appropriate payment date, the proportionate amount of dividends or other distributions or interest 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 IHK Common StockClass B Stock or Notes.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions provision of this Agreement, no fraction of a share of Class B Stock or of a Note shall be issued in connection with the Merger, and such fractional interest shall not entitle the owner thereof to vote or to any rights as a security holder of Reckson. In lieu of any such fractional security, each holder of shares of Company Common Stock after the Effective Time who would and Company OP Units otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Class B Stock or of a Note will be entitled to receive in accordance with the provisions of this Section 1.5 from the Exchange Agent, a cash payment representing such holder's proportionate interest in the net proceeds from the sale by the Exchange Agent on behalf of all such holders of the aggregate of the fractions of Class B Stock or Notes, as the case may be, which would otherwise be issued (after taking into account all respectively, the "Excess Shares" and the "Excess Notes"). The sale of the Excess Shares by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. The sale of the Excess Notes by the Exchange Agent shall be executed in the over-the-counter market. Until the net proceeds of such sale or sales have been distributed to the holders of shares of Company Common Stock delivered by and Company OP Units, the Exchange Agent will, subject to Section 1.5(e) hereof, hold such holder) proceeds in trust for the holders of shares of Company Common Stock and Company OP Units. Buyer shall receivepay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Exchange Agent incurred in connection with such sale of the Excess Shares. As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of shares of Company Common Stock and Company OP Units in lieu thereofof any fractional Class B Stock or Fractional Notes, a cash payment (without interest) equal the Exchange Agent shall make available such amounts to such fraction multiplied by the Cash Considerationholders of shares of Company Common Stock and Company OP Units.
(fe) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 1.5 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock Certificates for six months one year after the Effective Time shall be delivered to IHKBuyer, upon demand, and any holders of shares of Company Common Stock prior to the Effective Time Merger who have not theretofore complied with this Article II I shall (to the extent permitted by applicable law) thereafter look only to IHK Buyer and only as general creditors thereof for payment of their claim for cash or (i) cash, if any, (ii) shares of IHK Common Class B Stock, if any, (iii) Notes, if any, (iv) any cash in lieu of fractional shares of Class B Stock and Fractional Notes and (v) any dividends or distributions with respect to shares of Class B Stock or interest with respect to Notes to which such holders may be entitled.
(gf) None of Merger SubBuyer, Reckson, the Company, IHK Company or the Exchange Agent shall be liable to any person Person in respect of any cash or any shares of IHK Common Stock Class B Stock, Notes or cash from the Exchange Fund delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock Certificates shall not have been surrendered prior to one year after the Effective Time (or immediately prior to the such earlier date on which (i) any Merger Consideration cash, (ii) any cash in lieu of fractional shares of Class B Stock or Fractional Notes, (iii) any shares of Class B Stock or Notes or (iv) any dividends or distributions with respect to shares of Class B Stock or interest with respect to Notes in respect of which such certificate Certificate would otherwise escheat to or become the property of any Government AuthorityGovernmental Entity (as defined in Section 3.3(b) hereof)), any such Merger Consideration shares of Class B Stock, Notes, cash, dividends or distributions or interest in respect of such certificate Certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving CorporationBuyer, free and clear of all claims or interest of any person Person previously entitled thereto.
(hg) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, Buyer on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHKBuyer. To the extent that there are losses with respect to such investmentsNothing contained in this Section 1.5(g) shall relieve Buyer, Reckson or the Exchange Fund diminishes for other reasons below Agent from making the level payments required by this Article I to make prompt payments be made to the holders of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion shares of the Exchange Fund lost through investments or other events so as Company Common Stock and to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsholders of Company Stock Options.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Reckson Associates Realty Corp), Merger Agreement (Tower Realty Trust Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates which immediately prior thereto to the Effective Time represented shares of Company Common Stock shallshall be entitled to receive in exchange therefor, upon surrender thereof to an exchange agent reasonably satisfactory to Parent and the Exchange Agent of such certificate or certificates and acceptances thereof by Company (the "Exchange Agent"), be entitled to a certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Considerationto which such holder is entitled pursuant to Section 3.1. Notwithstanding any other provision of this Agreement, if any, into which the number (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock previously have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any shares represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there no payment for fractional shares shall be no further transfer on the records of the Company or its transfer agent of made and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any dividends or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, and if such certificates are presented Parent shall pay to the Surviving Corporation for transferholder of such certificate the amount of any dividends which theretofore became payable, they shall be canceled against delivery but which were not paid by reason of cash and/or certificates for the foregoing, with respect to the number of whole shares of IHK Parent Common Stock in accordance with this Agreement. represented by the certificate or certificates issued upon such surrender.
(a) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(b) Promptly after the issuance of Effective Time, Parent shall make available to the Exchange Agent the certificates for such representing shares of IHK Parent Common Stock required to effect the exchanges referred to in a name other than that Section 3.2 above and cash for payment of any fractional shares referred to in Section 3.3.
(c) Promptly after the registered Effective Time, Parent's Exchange Agent shall mail to each holder of the record of a certificate surrendered, or establish certificates that immediately prior to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a letter of transmittal (which shall specify that delivery shall be deemed at any time after effected, and risk of loss and title to the Effective Time Company Certificates shall pass, only upon actual delivery of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid Company Certificates to the holder of any unsurrendered certificate Exchange Agent) and (ii) instructions for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until effecting the surrender of the certificate Company Certificates in exchange for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Parent Common Stock in accordance and such holder's respective portion of the Cash Consideration. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the terms Exchange Agent shall reasonably require, the holder of this Article II (including any cash paid pursuant to Section 2.10(e)) such Company Certificates shall be deemed entitled to have been issued (and paid) receive in full satisfaction exchange therefor a certificate representing that number of all rights pertaining to whole shares of Parent Common Stock into which the shares of Company Common Stock exchanged for cash theretofore represented by the Company Certificates so surrendered shall have been converted pursuant to the provisions of Section 3.1(a), along with such certificatesholder's respective portion of the Cash Consideration, and thereafter the Company Certificates so surrendered shall be canceled.
(d) Nine (9) months after the Effective Date, the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Company Certificate may surrender such Company Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar Laws) receive in exchange therefor the Net Closing Consideration, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Merger Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Net Closing Consideration delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(e) Notwithstanding If any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise Certificate shall have been entitled to receive as Stock Consideration a fraction lost, stolen or destroyed, upon the making of an affidavit or declaration and the signing by such person of a share of IHK Common Lost Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, Indemnity in lieu thereof, a cash payment (without interest) equal form reasonably acceptable to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant (but without any bond or similar requirement) claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common 3.2. If no Lost Stock for six months after the Effective Time shall be delivered to IHKIndemnity form has been signed by such person, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for when authorizing such payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Subin exchange therefor, the Company, IHK or the Exchange Agent shall be liable to any person in respect Board of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property Directors of the Surviving CorporationCorporation may, free in its discretion and clear as a condition precedent to the issuance thereof, require the owner of all claims such lost, stolen or interest of any person previously entitled thereto.
destroyed Company Certificate to give the Surviving Corporation such indemnity (h) The Exchange Agent but no bond shall invest any cash included in the Exchange Fundbe required), as directed by IHK, on a daily basis, provided it may reasonably request as protection against any claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To against the extent that there are losses Surviving Corporation with respect to such investmentsthe Company Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (National Technical Systems Inc /Ca/), Merger Agreement (National Technical Systems Inc /Ca/)
Exchange of Certificates. (a) Prior to the mailing Upon surrender of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common UAC Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented Certificate to the Surviving Corporation for transferexchange, they together with such other documents as may be reasonably required by the Surviving Corporation, the holder of such UAC Stock Certificate shall be canceled against delivery entitled to receive in exchange therefor a certificate representing the number of cash and/or certificates for whole shares of IHK the Surviving Corporation Common Stock in accordance with this Agreement. If any certificate for that such shares holder has the right to receive pursuant to the provisions of IHK Common Section 1.4, and UAC Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)1.6, each certificate for shares of Company Common UAC Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive upon such surrender a certificate representing shares of the Merger Consideration Surviving Corporation Common Stock (and cash in lieu of any fractional share of the Surviving Corporation Common Stock) as contemplated by Section 2.061.4. If any UAC Stock Certificate shall have been lost, stolen or destroyed, the Surviving Corporation may, in its discretion and as a condition precedent to the issuance of any certificate representing the Surviving Corporation Common Stock, require the owner of such lost, stolen or destroyed UAC Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as the Surviving Corporation may reasonably direct) as indemnity against any claim that may be made against the Surviving Corporation with respect to such UAC Stock Certificate.
(cb) No dividends or other distributions declared or made with respect to shares of IHK the Surviving Corporation Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common UAC Stock Certificate with respect to the shares of IHK the Surviving Corporation Common Stock represented thereby thereby, and no cash payment in lieu of any fractional shares of IHK Common Stock share shall be paid to any such holder, until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common surrenders such UAC Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1.6 (at which time such certificates, these holder shall be paid entitled to the holder receive all such dividends and distributions and such cash payment).
(c) No fractional shares of the certificate representing whole shares of IHK Surviving Corporation Common Stock shall be issued in connection therewithwith the Merger, without interest (i) at the time and no certificates for any such fractional shares shall be issued. In lieu of such surrender the amount of fractional shares, any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares capital stock of Company Common Stock after the Effective Time UAC who would otherwise have been be entitled to receive as Stock Consideration a fraction of a share of IHK the Surviving Corporation Common Stock (after taking into account aggregating all fractional shares of Company the Surviving Corporation Common Stock delivered by issuable to such holder) shall receiveshall, in lieu thereofupon surrender of such holder's UAC Stock Certificate(s), a cash payment (without interest) equal have such fractional interest rounded up to such fraction multiplied by the Cash Considerationnearest whole number.
(fd) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time The Surviving Corporation shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect holder or former holder of any cash or common stock of UAC for any shares of IHK the Surviving Corporation Common Stock from the Exchange Fund (or dividends or distributions with respect thereto), or for any cash amounts, delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (United American Companies Inc), Merger Agreement (Providence Capital I Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK Parent shall deposit the aggregate Merger Consideration deposit, or shall cause to be deposited, with the Exchange Agent Agent, for the benefit of the holders of shares of Company Common Stock, Stock and the holders of Company Preferred Stock for exchange in accordance with this Article II, through the Exchange Agent, certificates representing the shares of the Parent Common Stock issuable pursuant to Section 2.5 in exchange for outstanding shares of Company Common Stock and Company Preferred Stock.
(b) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of an outstanding record of a certificate or certificates which immediately prior thereto to the Effective Time represented outstanding shares of Company Common Stock shallor Company Preferred Stock (the "Certificates") whose shares were converted into shares of Parent Common Stock pursuant to Section 2.5, (i) a letter of transmittal, in form and substance acceptable to Parent, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed, the holder of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor a certificate or certificates representing the that number of full shares of IHK Parent Common Stock received as Stock Consideration and which such holder has the Cash Consideration, if any, right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article II (after taking into which the number of account all shares of Company Common Stock previously represented and Company Preferred Stock then held by such certificate or certificates holder), and the Certificate so surrendered shall have been converted pursuant to this Agreementforthwith be canceled. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as In the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further event of a transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares ownership of Company Common Stock surrendered for exchange which is registerednot registered in the transfer records of the Company, it shall a certificate representing the proper number of shares of Parent Common Stock may be issued to a condition of transferee if the Certificate representing such exchange that Company Common Stock is presented to the certificate so surrendered shall be properly endorsedExchange Agent, with signature guaranteed or otherwise accompanied by all documents, in proper form for and substance satisfactory to Parent, required to evidence and effect such transfer and by evidence that the person requesting such exchange shall pay to the Surviving Corporation or its any applicable stock transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 2.10(b2.6(b), each certificate for shares of Company Common Stock Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration certificate representing shares of Parent Common Stock and cash in lieu of any fractional shares of Parent Common Stock as contemplated by this Section 2.062.6. If any Certificate shall have been lost, stolen or destroyed, Parent shall issue a certificate representing Parent Common Stock with respect to such lost, stolen or destroyed Certificate in accordance with this Agreement upon delivery by the owner of such lost, stolen or destroyed Certificate to Parent of an appropriate affidavit as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Certificate.
(c) No dividends or other distributions declared or made after the Effective Time with respect to shares of IHK Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Parent Common Stock represented thereby thereby, and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e2.6(e) until the such holder of such Certificate shall surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with such Certificate as contemplated by this Article IIAgreement. Subject to the effect of the applicable laws, laws following surrender of any such certificatesCertificate, these there shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, Certificates without interest (i) at the time of such surrender surrender, the amount of any cash payable in lieu with respect to a fractional share of fractional shares Parent Common Stock to which such holder is entitled pursuant to Section 2.10(e2.6(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Parent Common Stock.
(d) All cash paid shares of Parent Common Stock issued upon the surrender for exchange conversion of certificates representing shares of Company Common Stock and Company Preferred Stock in accordance with the terms of this Article II Agreement (including any cash paid pursuant to Section 2.10(e2.6(c) or 2.6(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the such shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.Common
Appears in 2 contracts
Sources: Merger Agreement (Box Hill Systems Corp), Merger Agreement (Artecon Inc /De/)
Exchange of Certificates. (a) Prior At the Closing, the Company shall cause the Company Shareholders and the Company Rights holders to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates any and acceptances thereof by the Exchange Agent, be entitled to a certificate or all certificates representing the number of full shares of IHK Common Company Stock received as Stock Consideration and the Cash ConsiderationCompany Rights, if anyas applicable, into which the number of shares of together with any other reasonably required documents such as medallion guaranteed stock powers and assignments, to Parent. Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms Shareholders and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there Company Rights holders holding “in-the-money” Company Rights shall be no further transfer on the records of the Company or its transfer agent of entitled, upon surrender, to receive in exchange therefor certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Parent Merger Stock in accordance with the terms of this Agreement. Parent shall not be obligated to issue certificates representing Parent Merger Stock to any Company Shareholder or Company Rights holder holding “in-the-money” Company Rights unless such Company Shareholder or Company Rights holder has executed and provided to the Company and Parent a Lock-Up Agreement and customary investment representations. Alternatively, if a Company Shareholder or Company Rights holder with “in-the-money” Company Rights requests his or her Parent Merger Stock to be held by a brokerage firm or other eligible nominee, Parent will provide irrevocable instructions to its Transfer Agent providing for book entry issuances of the applicable Parent Merger Stock, subject to the prior receipt of an executed Lock-Up Agreement and investment representations from each Company Shareholder or holder of “in-the-money” Company Rights. If any certificate for such shares of IHK Common Parent Merger Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such that exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such the exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes Taxes or fees required by reason of the issuance of certificates for such shares of IHK Common Parent Merger Stock in a name other than that of the registered holder of the Company Stock certificate surrendered.
(b) Upon surrender of a Company Stock certificate to Parent, or establish the holder of such Company Stock certificate shall be entitled to receive in exchange therefor (subject to prior receipt by Parent of an executed Lock-Up Agreement and investment representations) a certificate representing the number of whole shares of Parent Merger Stock that such holder has the right to receive pursuant to the satisfaction provisions hereof, together with one additional whole share of Parent Merger Stock for any fractional share of Parent Merger Stock that would otherwise be issuable to a Company Shareholder or holder of “in-the-money” Company Rights, and the Surviving Corporation Company Stock or its transfer agent that such tax has been paid or is not applicableCompany Rights certificate so surrendered shall be canceled. Until surrendered as contemplated by this Section 2.10(b)2.10, each Company Stock certificate for shares of or Company Common Stock Rights certificate representing “in-the-money” Company Rights shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive upon such surrender the shares of Parent Merger Consideration Stock as contemplated by Section 2.06hereby.
(c) No dividends or other distributions with respect to shares of IHK Common If any Company Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for certificates representing shares of Company Common Stock with respect to or Company Rights certificate representing “in-the-money” Company Rights shall have been lost or destroyed, the Company Shareholders and Company Rights holders who are the registered owners of those shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of or Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable lawsRights, following surrender of any such certificatesrespectively, these shall be paid to the holder of may obtain the certificate representing whole shares of IHK Common the Parent Merger Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is the Company Shareholders or holders of “in-the-money” Company Rights are entitled pursuant by reason of the consummation of the Merger, provided that the Company Shareholders or Company Rights holders deliver to Section 2.10(e) Parent and the proportionate amount Transfer Agent a statement certifying to the loss or destruction and providing for indemnity or a bond satisfactory to Parent and the Transfer Agent indemnifying Parent and the Transfer Agent against any loss or expense either of dividends them may incur if the lost or other distributions with a record date after destroyed certificates or Company Rights are thereafter presented to Parent or the Effective Time theretofore paid with respect Transfer Agent for exchange to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockTransfer Agent.
(d) All cash paid shares of Parent Merger Stock issued upon the surrender for and exchange of certificates representing shares of Company Common Stock and “in-the-money” Company Rights in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) hereof, shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of such Company Common Stock exchanged for cash theretofore represented by such certificatesand Company Rights.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Any Parent Merger Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock Certificates for six nine months after the Effective Time shall be delivered to IHKretained by Parent, and any holders of shares of Company Common Stock prior to the Effective Time certificates who have not theretofore complied previously surrendered their Company Stock certificates in accordance with this Article II Section 2.10 shall thereafter look only to IHK and only as general creditors thereof Parent for payment issuance of their claim for cash or shares of IHK the Parent Common StockStock to which such holders are entitled. Notwithstanding the foregoing, if any.
(g) None of Merger Sub, neither Parent nor the Company, IHK or the Exchange Agent Company shall be liable to any person in respect holder of any cash Company Common Stock or any Parent Common Stock, as the case may be, for such shares of IHK Parent Common Stock from the Exchange Fund thereafter delivered pursuant to applicable law to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing .
(f) The Company shall donate to the capital of Parent, pursuant to the Donation to Capital Agreement attached as Exhibit E, the 3,500,000 shares of Parent Stock now owned by the Company Common Stock in Parent. The Donation to Capital Agreement shall not have been surrendered take effect immediately prior to the date on Closing, at which any Merger Consideration in respect time the 3,500,000 shares of such certificate would otherwise escheat to or become Parent Stock held by the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time Company shall be cancelled and returned to the extent permitted by applicable law, become the property status of the Surviving Corporation, free and clear treasury shares of all claims or interest of any person previously entitled theretoParent.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Ampio Pharmaceuticals, Inc.)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly Promptly after the Effective Time, IHK Brainworks shall deposit the aggregate Merger Consideration with the Exchange Agent for Surviving Corporation certificates representing the benefit of the holders of shares of Company Brainworks Common Stock, for exchange in accordance with this Article IIStock issuable pursuant to Section 1.5(a)(i).
(b) As soon Upon surrender of a Company Stock Certificate to the Surviving Corporation for exchange, together with such other documents as practicable after may be reasonably required by the Effective Time, each Surviving Corporation or Brainworks: (i) the holder of an outstanding certificate or certificates which prior thereto represented shares of such Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Brainworks Common Stock previously represented by that such certificate or certificates surrendered shall have been converted holder has the right to receive pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms the provisions of Section 1.5(a)(i); and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the (ii) any Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)1.7, each certificate for shares of Company Common Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive upon such surrender the Merger Consideration shares of Brainworks Common Stock as contemplated by Section 2.061.5(a)(i).
(c) No dividends As soon as practicable, following the Effective Time, Brainworks shall take all steps necessary to call a special meeting of the stockholders of Brainworks for the purpose of voting upon a proposal to increase the authorized number of shares of Brainworks Common Stock from 25,000,000 to 50,000,000 shares. On the effective date of the increase in the authorized number of shares of Brainworks Common Stock to 50,000,000, each share of Company Converting Preferred Stock will be exchanged into one share of Brainworks Common Stock, subject to adjustment in the following events:
(i) if, prior to such exchange, (A) the number of outstanding shares of Brainworks Common Stock is increased by a stock split, stock dividend, a reclassification or other distributions with respect to similar event, the number of shares of IHK Brainworks Common Stock with a record date after to be issued in exchange for the Effective Time Company Converting Preferred Stock shall be paid proportionately increased; or (B) the number of outstanding shares of Brainworks Common Stock is decreased by a reverse stock split, combination or reclassification of shares or other similar event, the number of shares of Brainworks Common Stock issuable in exchange for the Company Converting Preferred Stock shall be proportionately decreased; and
(ii) if, prior to the holder exchange of any unsurrendered certificate Brainworks Common Stock for the Company Converting Preferred Stock, there is a merger, consolidation, business combination, tender offer, exchange of shares, recapitalization, reorganization, redemption or other similar event, as a result of which shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Brainworks Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder or changed into the same or a different number of shares of Company the same or another class or classes of stock or securities of Brainworks or another entity, then the number of shares of Brainworks Common Stock after issuable upon exchange of the Effective Time who Company Converting Preferred Stock shall be proportionately adjusted. Brainworks shall not enter into or affect any transaction which would otherwise have been entitled to receive as Stock Consideration a fraction cause an adjustment in the number of a share shares of IHK Brainworks Common Stock (after taking into account all shares issuable upon exchange of Company Common Converting Preferred Stock delivered by such holder) shall receive, as provided in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (1.7 without the "Exchange Fund") which remains undistributed to prior written consent of the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person a majority in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property aggregate principal amount of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretothen outstanding Company Converting Preferred Stock.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates ("Certificates") which prior thereto represented shares of Company RTI Common Stock shall, upon surrender or RTI Preferred Stock immediately prior to the Exchange Agent of Effective Time shall have the right to surrender each Certificate to Mpath (or at Mpath's option, an exchange agent to be appointed by Mpath), and receive promptly in exchange for all Certificates held by such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to holder a certificate or certificates representing the number of full whole shares of IHK Mpath Common Stock received as Stock Consideration and (other than the Escrow Shares) plus the Cash ConsiderationPayment, if anyapplicable, into which the number of shares of Company RTI Common Stock previously represented or RTI Preferred Stock evidenced by such certificate or certificates the Certificates so surrendered shall have been converted pursuant to the provisions of Article II of this Agreement. The Exchange Agent surrender of Certificates shall accept be accompanied by duly completed and executed Letters of Transmittal in the form mutually agreed upon by the parties hereto. Until surrendered, each outstanding Certificate which prior to the Effective Time represented shares of RTI Common Stock or RTI Preferred Stock shall be deemed for all corporate purposes to evidence ownership of the number of whole shares of Mpath Common Stock plus any Cash Payment, if applicable, into which the shares of RTI Common Stock and RTI Preferred Stock have been converted but shall, subject to applicable appraisal rights under Delaware Law, have no other rights. Subject to applicable appraisal rights under Delaware Law, from and after the Effective Time, the holders of shares of RTI Common Stock and RTI Preferred Stock shall cease to have any rights in respect of such certificates upon compliance with shares and their rights shall be solely in respect of the Mpath Common Stock and the Cash Payment, if applicable, into which such reasonable terms shares of RTI Common Stock or RTI Preferred Stock have been converted. From and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After after the Effective Time, there shall be no further transfer registration of transfers on the records of the Company or its transfer agent RTI of certificates representing shares of Company RTI Common Stock, Stock and if such certificates are presented RTI Preferred Stock outstanding immediately prior to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for Effective Time.
(b) If any shares of IHK Mpath Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is are to be issued in, or if cash is to be remitted to, in the name of a name person other than that the person in which whose name the certificate for shares of Company Common Stock Certificate(s) surrendered for in exchange therefor is registered, it shall be a condition to the issuance of such exchange shares that (i) the certificate Certificate(s) so surrendered shall be transferable, and shall be properly endorsedassigned, with signature guaranteed endorsed or accompanied by appropriate stock powers, (ii) such transfer shall otherwise in be proper form for transfer and that (iii) the person requesting such exchange transfer shall pay to the Surviving Corporation Mpath, or its transfer agent exchange agent, any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, foregoing or establish to the satisfaction of the Surviving Corporation or its transfer agent Mpath that such tax has taxes have been paid or is are not applicablerequired to be paid. Until surrendered as contemplated by this Section 2.10(b)Notwithstanding the foregoing, each certificate neither Mpath nor RTI shall be liable to a holder of shares of RTI Common Stock or RTI Preferred Stock for shares of Company Mpath Common Stock shall be deemed at or any time after the Effective Time of the Merger Cash Payment issuable to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender provisions of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms II of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund Agreement that are delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(hc) The Exchange Agent In the event any Certificate shall invest any cash included 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, Mpath shall issue in exchange for such lost, stolen or destroyed Certificate the Exchange Fundshares of Mpath Common Stock issuable in exchange therefor and pay the Cash Payment, as directed by IHKif applicable, on a daily basis, provided that such investments shall be in obligations pursuant to the provisions of Article II of the United States Agreement. The Board of America Directors of Mpath may in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or obligations fully guaranteed as destroyed Certificate to principal and interest by the United States of America, provide to Mpath an indemnity agreement or bond against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against Mpath with respect to such investmentsthe Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Mpath Interactive Inc/Ca), Merger Agreement (Mpath Interactive Inc/Ca)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As soon as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As reasonably practicable as of or promptly after the Effective TimeTime of the Merger, IHK the Corporation shall deposit the aggregate Merger Consideration with the Exchange Agent Paying Agent, for the benefit of the holders of shares of Company Common StockShares, for exchange in accordance with this Article II, the cash portion of the Merger Consideration.
(b) As soon as practicable after the Effective TimeTime of the Merger, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock Shares shall, upon surrender to the Exchange Paying Agent of such certificate or certificates and acceptances acceptance thereof by the Exchange Paying Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received in the Surviving Corporation, if any, to be retained by the holder thereof as Stock Consideration Retained Shares pursuant to this Agreement and the Cash Considerationamount of cash, if any, into which the number of shares of Company Common Stock Shares previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Paying Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective TimeTime of the Merger, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock(i) Shares which have been converted, in whole or in part, pursuant to this Agreement into the right to receive cash, and if such certificates are presented to the Surviving Corporation Company for transfer, they shall be canceled against delivery of cash and/or and, if appropriate, certificates for shares of IHK Common Stock in accordance with this AgreementRetained Shares. If any certificate for such shares of IHK Common Stock Retained Shares is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock Shares surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation Company or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock Retained Shares in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b2.07(b), each certificate for shares of Company Common Stock Shares shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.062.01.
(c) No dividends or other distributions with respect to shares of IHK Common Stock Retained Shares with a record date after the Effective Time of the Merger shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Shares with respect to the shares of IHK Common Stock Retained Shares represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock Shares shall be paid to any such holder pursuant to Section 2.10(e2.07(e) until the surrender of the such certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificatescertificate, these there shall be paid to the holder of the certificate representing whole shares of IHK Common Stock Retained Shares issued in connection therewith, without interest (i) at the time of such surrender or as promptly after the sale of the Excess Shares (as defined in Section 2.07(e)) as practicable, the amount of any cash payable in lieu of a fractional shares retained share to which such holder is entitled pursuant to Section 2.10(e2.07(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore of the Merger therefor paid with respect to such shares of IHK Common StockRetained Shares, and (ii) at the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time of the Merger but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common StockRetained Shares.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock Shares in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)2.07(e) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock Shares exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions provision of this Agreement, each holder of shares of Company Common Stock after Shares retained pursuant to the Effective Time Merger who would otherwise have been entitled to receive as Stock Consideration retain a fraction of a share of IHK Common Stock Retained Share (after taking into account all shares of Company Common Stock Shares delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
$40.50. (f) Any portion of the Merger Consideration deposited with the Exchange Paying Agent pursuant to this Section 2.10 2.07 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock Shares for six months after the Effective Time of the Merger shall be delivered to IHK, the Surviving Corporation and any holders of shares of Company Common Stock Shares prior to the Effective Time Merger who have not theretofore complied with this Article II shall thereafter look only to IHK the Surviving Corporation and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stockcash, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (New Grancare Inc)
Exchange of Certificates. (a) Prior Gold Banc, on behalf of Acquisition Subsidiary, shall make available to the mailing of the Proxy StatementAmerican Stock Transfer and Trust Company, IHK shall appoint a bank or trust company to act Inc., which is hereby designated as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly ), at and after the Effective Time, IHK such number of shares of Gold Banc Common Stock as shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of be issuable to the holders of shares of Company Common Stock, for exchange Stock in accordance with this Article II.
(b) SECTION 2.7 hereof. As soon as practicable after the Effective TimeClosing Date, Gold Banc, on behalf of the Exchange Agents, shall mail to each holder of an record of a certificate that immediately prior to the Closing Date represented outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon (i) a form letter of transmittal and (ii) instructions for effecting the surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or for exchange into certificates surrendered shall have been converted pursuant to this Agreementof Gold Banc Common Stock. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as Gold Banc Common Stock into which the Exchange Agent may impose to effect an orderly exchange thereof Company Common Stock is being converted in accordance with normal exchange practices. After the Effective Time, there SECTION 2.7(B) hereof shall be no further transfer on the records delivered to each stockholder of the Company as set forth in a letter of transmittal.
(b) Notwithstanding any other provision herein, no fractional shares of Gold Banc Common Stock and no certificates or its transfer agent scrip therefor or other evidence of ownership thereof will be issued. All fractional shares of Gold Banc Common Stock to which a holder of Company Common Stock would otherwise be entitled to under SECTION 2.7 hereof shall be aggregated. If a fractional share results from such aggregation, such stockholder shall be entitled, after the Effective Time and upon the surrender of such stockholder's certificate or certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender from the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no Exchange Agent an amount in cash payment in lieu of such fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect share equal to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time product of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) fraction and the proportionate amount Average Gold Banc Stock Price. Gold Banc, 423985 v7 9 on behalf of dividends or other distributions with a record date after the Effective Time theretofore paid with respect Acquisition Subsidiary, shall make available to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent, as required from time to time, any cash necessary for this purpose.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Union Bankshares LTD)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company Nanometrics Common Stock shallmay, upon at such stockholder’s option, surrender the same for cancellation to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation as exchange agent (the Exchange Agent of such certificate or certificates and acceptances thereof by the “Exchange Agent”), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation’s Common Stock received into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Nanometrics Common Stock Consideration shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation’s Common Stock into which such shares of Nanometrics Common Stock were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Nanometrics so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK the Surviving Corporation’s Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Nanometrics Inc)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company ZapMe! California Common Stock shallor Preferred Stock may, upon at such stockholder's option, surrender the same for cancellation to the Exchange Agent of such certificate or certificates and acceptances thereof an exchange agent designated by the Surviving Corporation (the "Exchange Agent"), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received or the Surviving Corporation's Preferred Stock, as applicable, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate previously representing shares of ZapMe! California Common Stock Consideration or Preferred Stock shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation's Common Stock or the Surviving Corporation's Preferred Stock, as applicable, into which such shares of ZapMe! California Common Stock or Preferred Stock were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock or Preferred Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock or Preferred Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of ZapMe! California so converted and given in exchange thereof in accordance with normal exchange practices. After therefor bear, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK the Surviving Corporation's Common Stock or Preferred Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper, and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Zapme Corp)
Exchange of Certificates. (a) Prior to the mailing of Effective Time, Epitope and STC shall cause the Proxy StatementSurviving Corporation, IHK shall and the Surviving Corporation agrees, to appoint a bank or trust company the Exchange Agent to act as paying the exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration in connection with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange Mergers. Except as otherwise provided in accordance with this Article II.
(b) As soon as practicable , from and after the Effective Time, each holder of an a certificate that immediately prior to the STC Effective Time or Epitope Effective Time, as the case may be, represented outstanding certificate or certificates which prior thereto represented shares of Company STC Common Stock shallor Epitope Common Stock (collectively, the "Certificates") shall be entitled to receive in exchange therefor, upon surrender thereof to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full whole shares of IHK Surviving Corporation Common Stock received as Stock Consideration and the Cash Consideration, if any, into which such holder's shares were converted in the STC Merger or Epitope Merger, as the case may be. Prior to the Effective Time, the Surviving Corporation will deliver to the Exchange Agent, in trust for the benefit of the holders of STC Common Stock and Epitope Common Stock, (i) certificates representing shares of Surviving Corporation Common Stock (such shares of Surviving Corporation Common Stock together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Exchange Fund") and (ii) cash in an amount sufficient for payment in lieu of fractional shares necessary to make the exchanges contemplated by this Article II on a timely basis.
(b) Promptly after the Effective Time, the Exchange Agent shall mail to each record holder of STC Common Stock and Epitope Common Stock as of the Effective Time, a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of Certificates in exchange for certificates representing shares of Surviving Corporation Common Stock. Upon surrender to the Exchange Agent of a Certificate, together with such letter of transmittal duly executed, and any other required documents, the holder of such Certificate shall be entitled to receive in exchange therefor, certificates representing shares of Surviving Corporation Common Stock as set forth in this Article II, and such Certificate shall forthwith be canceled. No holder of a Certificate or Certificates shall be entitled to receive any dividend or other distribution from the Surviving Corporation until the surrender of such holder's Certificate for a certificate or certificates representing shares of Surviving Corporation Common Stock. Upon such surrender, there shall be paid to the holder the amount of any dividends or other distributions (without interest) that theretofore became payable, but that were not paid by reason of the foregoing, with respect to the number of whole shares of Company Surviving Corporation Common Stock previously represented by such certificate or the certificates surrendered issued upon surrender, which amount shall have been converted pursuant be delivered to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent by the Surviving Corporation from time to time as such dividends or other distributions are declared. If delivery of certificates representing shares of Surviving Corporation Common Stock is to be made to a person other than the person in whose name the Certificate surrendered is registered or if any certificate for shares of Surviving Corporation Common Stock as the case may impose be, is to effect an orderly exchange thereof be issued in a name other than that in which the Certificate surrendered therefor is registered, it shall be a condition of such delivery or issuance that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the person requesting such delivery or issuance shall pay any transfer or other Taxes required by reason of such delivery or issuance to a person other than the registered holder of the Certificate surrendered or establish to the satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable. Until surrendered in accordance with normal exchange practices. the provisions of this Section 2.4, each Certificate shall represent for all purposes only the right to receive shares of Surviving Corporation Common Stock (and, in the case of Certificates theretofore representing STC Common Stock, cash in lieu of fractional shares) as provided in this Article II without any interest thereon.
(c) After the Effective Time, there shall be no further transfer transfers on the records stock transfer books of the Company or its transfer agent Surviving Corporation of certificates representing the shares of Company STC Common StockStock or Epitope Common Stock that were outstanding prior to the Effective Time. If, and if such certificates after the Effective Time, Certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates and exchanged for shares of IHK Surviving Corporation Common Stock as provided in this Article II, in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that the procedures set forth in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.062.3.
(cd) No dividends or other distributions with respect to shares Any portion of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of Exchange Fund and any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Surviving Corporation Common Stock shall be paid made available to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders former stockholders of the certificates representing shares of Company Common Stock STC for six months one year after the STC Effective Time shall be delivered to IHKthe Surviving Corporation, upon demand, and any holders stockholders of shares of Company Common Stock prior to the Effective Time STC who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof the Surviving Corporation for payment of their claim for cash or shares of IHK Surviving Corporation Common Stock, if anyany cash in lieu of fractional shares of Surviving Corporation Common Stock and any dividends or distributions with respect to Surviving Corporation Common Stock. Any portion of the Exchange Fund which remains undistributed to the former stockholders of Epitope for one year after the Epitope Effective Time shall be delivered to the Surviving Corporation, upon demand, and any stockholders of Epitope who have not theretofore complied with this Article II shall thereafter look only to the Surviving Corporation for payment of their claim for Surviving Corporation Common Stock, and any dividends or distributions with respect to Surviving Corporation Common Stock.
(ge) None of Merger SubSTC, the CompanyEpitope, IHK or the Exchange Agent Surviving Corporation shall be liable to any person in respect holder of any cash or any shares of IHK STC Common Stock from or Epitope Common Stock, as the Exchange Fund case may be, for such shares (or dividends or distributions with respect thereto) or cash in lieu of fractional shares of Surviving Corporation Common Stock delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If Any amounts remaining unclaimed by holders of any certificates representing such shares of Company Common Stock shall not have been surrendered two years after the Effective Time (or such earlier date immediately prior to the date on which any Merger Consideration in respect of such certificate time as such amounts would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate Governmental Entity) shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, Corporation free and clear of all any claims or interest of any person such holders or their successors, assigns or personal representatives previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Epitope Inc/Or/)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK New Century REIT shall deposit deposit, or shall cause to be deposited, with U.S. Stock Transfer, the aggregate Merger Consideration with the Exchange Agent transfer agent and registrar for the benefit shares of New Century REIT Common Stock and the exchange agent for purposes of the holders of shares of Company Common StockMerger (the “Exchange Agent”), for exchange in accordance with this Article II, certificates evidencing shares of New Century REIT Common Stock (the “Exchange Fund”) to be issued pursuant to Section 2.1 and delivered pursuant to this Section 2.4 in exchange for outstanding shares of New Century Financial Common Stock.
(b) As soon as reasonably practicable after the Effective Time, New Century REIT shall cause the Exchange Agent to mail to each holder of an outstanding record of a certificate or certificates which immediately prior thereto to the Effective Time represented outstanding shares of Company New Century Financial Common Stock shall(“Certificates”), (i) a letter of transmittal which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon surrender delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as New Century REIT may reasonably specify, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates evidencing shares of New Century REIT Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the holder of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which evidencing the number of shares of Company New Century REIT Common Stock previously represented by which such certificate or certificates holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article II, and the Certificate so surrendered shall have been converted pursuant forthwith be canceled. In the event of a surrender of a Certificate representing shares of New Century Financial Common Stock in exchange for a certificate evidencing shares of New Century REIT Common Stock in the name of a person other than the person in whose name such shares of New Century Financial Common Stock are registered, a certificate evidencing the proper number of shares of New Century REIT Common Stock may be issued to this Agreement. The such a transferee if the Certificate evidencing such securities is presented to the Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as Agent, accompanied by all documents required by the Exchange Agent may impose or New Century REIT to evidence and effect an orderly such transfer and to evidence that any applicable transfer taxes have been paid.
(c) All shares of New Century REIT Common Stock issued upon the surrender for exchange thereof of shares of New Century Financial Common Stock in accordance with normal exchange practicesthe terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of New Century Financial Common Stock, subject, however, to New Century REIT’s obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by New Century Financial on such New Century Financial Common Stock and which remain unpaid at the Effective Time. After Any such dividends or distributions that would have entitled stockholders of New Century Financial to receive shares of New Century Financial Common Stock shall be deemed, after the Effective Time, to entitle stockholders of New Century REIT to receive the same number of shares of New Century REIT Common Stock.
(d) At and after the Effective Time, there shall be no further transfer transfers on the records stock transfer books of the Company or its transfer agent New Century Financial of certificates representing shares of Company New Century Financial Common StockStock which were outstanding immediately prior to the Effective Time. If, and if such certificates after the Effective Time, Certificates are presented to the Surviving Corporation for transferNew Century REIT, they shall be canceled against delivery of cash and/or certificates and exchanged for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company New Century REIT Common Stock in accordance with the terms of procedures set forth in this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificatesII.
(e) Notwithstanding any other provisions of this Agreement, each holder of No fractional shares of Company New Century REIT Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Considerationbe issued pursuant hereto.
(f) Any portion of the Merger Consideration deposited with Exchange Fund that remains unclaimed by the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders former stockholders of the certificates representing shares of Company Common Stock for six months New Century Financial one year after the Effective Time shall be delivered to IHK, and any holders New Century REIT. Any former stockholders of shares of Company Common Stock prior to the Effective Time New Century Financial who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof New Century REIT for payment of their claim for cash or shares of IHK New Century REIT Common StockStock deliverable in respect of each share of New Century Financial Common Stock such stockholder holds as determined pursuant to this Agreement, if anywithout any interest thereon.
(g) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by New Century REIT, the posting by such person of a bond in such reasonable amount as New Century REIT may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent or New Century REIT will issue in exchange for such lost, stolen or destroyed Certificate the shares of New Century REIT Common Stock deliverable in respect thereof pursuant to this Agreement.
(h) None of New Century Financial, New Century REIT, NC Merger Sub, the Company, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of shares or securities of New Century Financial for any cash or any shares of IHK Common Stock from the Exchange Fund amount properly delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
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Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company CMD Common Stock shallmay be asked to surrender the same for cancellation to an exchange agent, upon surrender whose name will be delivered to holders prior to any requested exchange (the Exchange Agent of such certificate or certificates and acceptances thereof by the “Exchange Agent”), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK CMD Delaware’s Common Stock received as Stock Consideration and the Cash Consideration, if anyStock, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of CMD Common Stock shall be deemed for all purposes to represent the number of shares of Company CMD Delaware’s Common Stock previously into which such shares of CMD Common Stock were converted in the Reincorporation Merger. The registered owner on the books and records of CMD Delaware or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to CMD Delaware or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of CMD Delaware represented by such outstanding certificate or as provided above. Each certificate representing Common Stock of CMD Delaware so issued in the Reincorporation Merger shall bear the same legends, if any, with respect to the restrictions on transferability as the certificates surrendered shall have been of CMD so converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon and given in exchange therefore, unless otherwise determined by the Board of Directors of CMD Delaware in compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock CMD Delaware’s stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise be in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent CMD Delaware that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after After the Effective Time, each holder of an outstanding certificate representing the Parent Shares may be asked to surrender the same for cancellation to one or certificates which prior thereto represented shares of Company Common Stock shallmore exchange agents (the “Exchange Agents”), upon surrender to the Exchange Agent of and each such certificate or certificates and acceptances thereof by the Exchange Agent, holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full whole shares of IHK the Surviving Corporation’s Common Stock received into which the surrendered Parent Shares were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing the Parent Shares shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation’s Common Stock Consideration into which such Parent Shares were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation of any shares of Common Stock of the Surviving Corporation represented by any such outstanding certificate shall have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares the Parent Shares so converted and surrendered in exchange therefor, unless otherwise determined by the Board of Company Common Stock, and if such certificates are presented to Directors of the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock of the Surviving Corporation is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent the Exchange Agents any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior On the Effective Date, Buyer shall cause the Paying Agent to the mailing make available for personal pick up and mail to each holder of the Proxy Statement, IHK shall appoint record of one or more BHB Common Stock Certificates a bank or trust company to act as paying agent letter of transmittal and instructions (the "Exchange AgentTransmittal") for use in effecting the payment surrender of the Merger Consideration. As of or promptly after BHB Common Stock Certificates in exchange for the Effective Time, IHK shall deposit the aggregate Per Share Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company BHB Common Stock previously represented by such certificate BHB Common Stock Certificate or certificates surrendered Certificates shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance Transmittal form is attached hereto as Exhibit B. Upon receipt of an BHB Common Stock Certificate for payment and cancellation to the Paying Agent, together with such reasonable terms properly completed Transmittal, duly executed, the holder of such BHB Common Stock Certificate shall be entitled to receive in exchange therefore a bank check of the Paying Agent representing the Per Share Merger Consideration for such holder's shares pursuant to Section 1.4 of this Agreement, and conditions as the Exchange Agent may impose BHB Common Stock Certificate so surrendered shall forthwith be cancelled. Such check shall be mailed by express mail to effect the address designated on the Transmittal within three (3) days of receipt of the Transmittal. All risk of loss for non-delivery of such check shall remain with the Buyer and Paying Agent. No interest will be paid or accrued on any Per Share Merger Consideration payable to a holder of BHB Common Stock Certificates.
(b) If any check is to be issued in a name other than that in which the BHB Common Stock Certificate surrendered in exchange therefore is registered, it shall be a condition of the issuance thereof that the BHB Common Stock Certificate so surrendered shall be properly endorsed or accompanied by an orderly exchange thereof appropriate instrument of transfer and otherwise in accordance with normal exchange practices. proper form for transfer.
(c) After the Effective Time, there shall be no further transfer transfers on the records stock transfer books of BHB of the Company or its transfer agent of certificates representing shares of Company BHB Common StockStock that were issued and outstanding immediately before the Effective Time. If, and if such certificates after the Effective Time, BHB Common Stock Certificates are presented for transfer to the Surviving Corporation for transferPaying Agent, they shall be canceled against delivery of cash and/or certificates cancelled and exchanged for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Per Share Merger Consideration as contemplated by provided in Section 2.061.4 hereof and this Article II.
(cd) No dividends or other distributions with respect to shares Any portion of IHK Common Stock with a record date the Conversion Fund that remains unclaimed by shareholders of BHB for one (1) year after the Effective Time shall be paid to the holder Surviving Corporation. Any shareholders of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time BHB who have not theretofore complied with this Article II shall thereafter look only to IHK and only the Surviving Corporation for the cash consideration payable in respect of each share of BHB Common Stock such shareholder holds as general creditors thereof for payment determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of their claim for cash or shares of IHK Common StockBuyer, if any.
(g) None of Merger SubBHB, the Company, IHK Paying Agent or the Exchange Agent any other person shall be liable to any person in respect former holder of any cash or any shares of IHK BHB Common Stock from the Exchange Fund for any amount delivered in good faith to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(he) The Exchange Agent In the event any BHB Common Stock Certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fundmaking of an affidavit of that fact by the person claiming such BHB Common Stock Certificate to be lost, as directed by IHK, on a daily basis, provided that such investments shall be in obligations stolen or destroyed and providing an indemnification agreement for the benefit of the United States of America or obligations fully guaranteed as to principal Buyer and interest Paying Agent in a form reasonably determined by the United States of America, Paying Agent reasonably necessary as indemnity against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against it with respect to such investmentsBHB Common Stock Certificate, the Paying Agent shall issue in exchange for such lost, stolen or destroyed BHB Common Stock Certificate the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Per Share Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as payable in respect thereof pursuant to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsthis Agreement.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to After the mailing Effective Time of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company previously representing Sotheby's Michigan Common Stock shallmay, upon at such holder’s option (but shall not be required to), surrender the same for cancellation to such entity as the Exchange Agent of such certificate or certificates and acceptances thereof by Surviving Corporation so designates as exchange agent (the Exchange Agent), and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the an equivalent number of shares of Company Sotheby's Delaware Common Stock. Until so surrendered, each outstanding certificate previously representing Sotheby's Michigan Common Stock shall be deemed for all purposes to represent the shares of Sotheby’s Delaware Common Stock into which the shares of Sotheby’s Michigan Common Stock previously represented by such certificate or have been converted as herein provided.
(b) The registered owners of Sotheby's Michigan Common Stock on the books and records of Sotheby's Michigan immediately prior to the Effective Time of the Merger shall be the registered owners of Sotheby's Delaware Common Stock on the books and records of Sotheby's Delaware immediately after the Effective Time of the Merger, and the holders of certificates surrendered previously representing shares of Sotheby's Michigan Common Stock, until such certificates shall have been surrendered for transfer or conversion or otherwise accounted for by the Surviving Corporation, shall be entitled to exercise any voting and other rights with respect to, and receive dividends and other distributions upon, the shares of Sotheby's Delaware Common Stock that such shares of Sotheby's Michigan Common Stock were converted into pursuant to this Agreement. The Exchange Agent the Merger.
(c) Each certificate representing Sotheby's Delaware Common Stock so issued in the Merger shall accept such bear the same legends, if any, with respect to the restrictions on transfer that appeared on the certificates upon representing Sotheby's Michigan Common Stock so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates applicable laws.
(d) If any certificate representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Sotheby's Delaware Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that the name in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall the following conditions must be a condition of such exchange that satisfied before the issuance thereof: (i) the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer; (ii) such transfer shall otherwise be proper; and that (iii) the person requesting such exchange transfer shall pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that the name of the registered holder of the certificate surrendered, surrendered or shall establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, ▇▇▇▇▇▇▇.▇▇▇ shall cause Continental Stock Transfer & Trust (the "Exchange Agent") to mail to each holder of an outstanding certificate or certificates which prior thereto represented shares record of Company Common Stock shallas of the Effective Time (i) a letter of transmittal (which shall be in customary form and specify that delivery shall be effected, and risk of loss and title to the certificates of Company Common Stock shall pass, only upon surrender delivery of such certificates to the Exchange Agent Agent) and (ii) instructions for use in effecting the surrender of such certificates in exchange for certificates representing ▇▇▇▇▇▇▇.▇▇▇ Common Stock. Upon surrender of a certificate or certificates and acceptances thereof by of Company Common Stock for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall require, the holder of such certificate shall be entitled to a certificate or certificates representing receive in exchange therefor the number of full whole shares of IHK ▇▇▇▇▇▇▇.▇▇▇ Common Stock received as Stock Consideration and the Cash Consideration, if any, into to which the number of shares holder of Company Common Stock previously is entitled pursuant to Section 1.7.1 hereof. The certificate so surrendered shall forthwith be canceled. Notwithstanding any other provision of this Agreement, until holders of certificates of Company Common Stock have surrendered them for exchange as provided herein, (i) no dividends or other distributions shall be paid with respect to any shares represented by such certificate or certificates surrendered shall have been converted pursuant certificates, and (ii) without regard to this Agreement. The Exchange Agent shall accept when such certificates upon compliance with such reasonable terms and conditions are surrendered for exchange as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Timeprovided herein, there no interest shall be no further transfer paid on the records any dividends or other distributions. Upon surrender of the Company or its transfer agent of certificates representing shares a certificate of Company Common Stock, and if such certificates are presented there shall be paid to the Surviving Corporation for transferholder of such certificate the amount of any dividends or other distributions which theretofore became payable, they shall be canceled against delivery but which were not paid by reason of cash and/or certificates for the foregoing, with respect to the number of whole shares of IHK ▇▇▇▇▇▇▇.▇▇▇ Common Stock in accordance with this Agreementrepresented by the certificate or certificates issued upon such surrender. If any certificate for such shares of IHK ▇▇▇▇▇▇▇.▇▇▇ Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefore is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK ▇▇▇▇▇▇▇.▇▇▇ Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by In connection with its undertakings pursuant to this Section 2.10(b)1.7.2, each certificate for shares of Company Common Stock the Exchange Agent shall be deemed at entitled to withhold any time after income taxes as required by the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Code.
(cb) No dividends or other distributions with respect to The shares of IHK ▇▇▇▇▇▇▇.▇▇▇ Common Stock with a record date after the Effective Time that each stockholder shall be paid entitled to receive pursuant to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) Merger shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after at the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) Time, and no interest shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion accrue on any of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anyClosing Shares.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Ubarter Com Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK The Transfer Agent shall appoint a bank or trust company to act as paying the exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article IIhereunder.
(b) As Parent shall cause the Transfer Agent, as soon as practicable after the Effective Time, to mail to each holder of an outstanding a Warrant and to each record holder (including nominee holders for distribution to beneficial holders) of a certificate or certificates which immediately prior thereto to the Effective Time represented outstanding shares of Company Common Stock shallor Company Preferred Stock (the "Certificates") a letter of transmittal (which shall specify that delivery shall be effected, upon surrender and risk of loss and title to the Exchange Certificates or Warrant shall pass, only upon actual delivery of the Certificates or Warrant to the Transfer Agent, and shall contain instructions for use in effecting the surrender of the Certificates or Warrant in exchange for the Merger Shares and a Form W-9 to establish available exemptions from back-up withholding). Upon surrender for cancellation to the Transfer Agent of one or more Certificates or Warrants held by any record holder of a Certificate or holder of a Warrant, together with such certificate letter of transmittal, duly executed, the holder of such Certificate or certificates and acceptances thereof by the Exchange Agent, Warrant shall be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the receive in exchange therefor that number of shares of Company Parent Common Stock previously to which such holder is entitled in respect of the shares represented by such certificate Certificate or certificates surrendered shall have been converted Certificates or in respect of such Warrant or Warrants, as applicable, pursuant to this AgreementArticle 1 , and any Certificate or Warrant so surrendered shall forthwith be cancelled. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall No interest will be no further transfer paid or accrued on the records Merger Shares payable to the holder of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. Certificates.
(c) If any certificate for such shares of IHK Common Stock is Merger Shares are to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock Certificate surrendered for exchange is registered, it shall be a condition of such exchange payment that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person Person requesting such exchange payment shall pay to the Surviving Corporation or its transfer agent Transfer Agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, payment or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Transfer Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock Parent or the Transfer Agent shall be deemed at any time after entitled to deduct and withhold from the Effective Time of the Merger consideration otherwise payable pursuant to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid this Agreement to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after and Company Preferred Stock such amounts as Parent or the Effective Time who would otherwise have Transfer Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of state, local or foreign tax law. To the extent that amounts are so withheld by Parent or the Transfer Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been entitled paid to receive as Stock Consideration a fraction the holder of a share of IHK Common Stock (after taking into account all the shares of Company Common Stock delivered and/or Company Preferred Stock in respect of which such deduction and withholding was made by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by Parent or the Cash ConsiderationTransfer Agent.
(fd) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shallEach record holder must, as such time and a condition to the extent permitted by applicable lawreceiving Merger Shares, become the property of the Surviving Corporationexecute a Representation Letter, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, form attached as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.Exhibit A.
Appears in 1 contract
Sources: Merger Agreement (Voip Inc)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank ------------------------ each holder of an outstanding certificate representing shares of ▇▇▇▇, ▇▇▇▇▇▇- California Common Stock or trust company Preferred Stock may be asked to act as paying agent surrender the same for cancellation to an exchange agent, whose name will be delivered to holders prior to any requested exchange (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received or Preferred Stock, as Stock Consideration and the Cash Consideration, if anycase may be, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of ▇▇▇▇, ▇▇▇▇▇▇-California Common Stock or Preferred Stock shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock previously represented by or Preferred Stock, respectively, into which such shares of ▇▇▇▇, ▇▇▇▇▇▇-California Common Stock or Preferred Stock, as the case may be, were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further surrendered for transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented conversion or otherwise accounted for to the Surviving Corporation for transferor the Exchange Agent, they shall have and be canceled against delivery of cash and/or certificates for entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of IHK Common Stock or Preferred Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock or Preferred Stock of the Surviving Corporation so issued in accordance the Merger shall bear the same legends, if any, with this Agreementrespect to the restrictions on transferability as the certificates of ▇▇▇▇, ▇▇▇▇▇▇-California so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws, or other such additional legends as agreed upon by the holder and the Surviving Corporation. If any certificate for such shares of IHK Common Stock ▇▇▇▇, ▇▇▇▇▇▇-Delaware stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent ▇▇▇▇, ▇▇▇▇▇▇- Delaware that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates which immediately prior thereto to the Effective Time represented shares of Company Common Stock shall(the "Company Certificates") shall cease to have any right as a stockholder of the Company and such holder's sole rights shall be to receive in exchange for such holder's Company Certificates, upon surrender thereof to the Exchange Agent of such certificate or certificates and acceptances thereof an exchange agent selected by the Company (the "Exchange Agent"), be entitled to a certificate or certificates representing the number of full whole registered shares of IHK HDG Common Stock received which such holder is entitled to receive pursuant to Section 3.1(a) plus cash in lieu of fractional shares, as Stock Consideration and the Cash Consideration, if any, into which the number provided in Section 3.3 hereof. Notwithstanding any other provision of this Agreement (i) until holders of Company Certificates theretofore representing shares of Company Common Stock previously represented by such certificate or certificates have surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions for exchange as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there provided herein (A) no dividends shall be no further transfer on the records of the Company or its transfer agent of certificates representing paid by HDG with respect to any shares of HDG Common Stock to be received upon the exchange of Company Common Stock, Certificates as provided in this Section 3.2 and if such certificates are presented to the Surviving Corporation (B) no payment for transfer, they fractional shares shall be canceled against delivery made; provided, in the case of cash and/or certificates (A) or (B), that upon surrender of such Company Certificates, the surrendering holder shall receive all such dividends and payments for fractional shares of IHK Common Stock in accordance with this Agreementand (ii) without regard to when such Company Certificates are surrendered for exchange as provided herein, no interest shall be paid on any such dividend or payment for fractional shares. If any certificate for such shares of IHK HDG Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate Company Certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK HDG Common Stock in a name other than that of the registered holder of the certificate surrendered, Company Certificate surrendered or shall establish to the satisfaction of the Surviving Corporation or its transfer agent HDG that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares No transfers of Company Common Stock shall be deemed at any time made on the stock transfer books of the Company after the Effective Time close of business on the day prior to the date of the Merger Effective Time.
(b) Before the Effective Time, HDG shall make available to represent only the right Exchange Agent a sufficient number of certificates representing shares of HDG Common Stock required to receive upon such surrender effect the Merger Consideration as contemplated by exchange referred to in Section 2.063.2(a) hereof.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date Promptly after the Effective Time Time, the Surviving Corporation shall cause the Exchange Agent to mail to each holder of record of the Company Certificates (i) a form letter of transmittal (which shall specify that delivery shall be paid effected, and risk of loss and title to the holder Company Certificates shall pass, only upon actual delivery of any unsurrendered certificate for shares of the Company Common Stock with respect Certificates to the shares of IHK Common Stock represented thereby Exchange Agent) and no cash payment (ii) instructions for use in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until effecting the surrender of the certificate Company Certificates in exchange for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of HDG Common Stock. Upon surrender of the Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor one or more certificates representing that number of whole shares of HDG Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to into which the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other the Company Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementSection 3.1(a), each in addition to payment for any fractional share of HDG Common Stock, and the Company Certificates so surrendered shall forthwith be cancelled. Until so surrendered and subject to Section 3.4 hereof, the Company Certificates shall represent solely the right to receive the number of whole shares of HDG Common Stock that shall be issued in exchange for Company Common Stock and any cash in lieu of the fractional HDG Common Stock as contemplated by Section 3.3 hereof. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all for any shares of Company HDG Common Stock delivered to a public official as required by such holder) applicable abandoned property, escheat or similar laws. The Exchange Agent shall receive, in lieu thereof, a cash payment (without interest) equal not be entitled to such fraction multiplied vote or exercise any rights of ownership with respect to HDG Common Stock held by the Cash Considerationit from time to time hereunder.
(fd) Any portion certificates of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") HDG Common Stock which remains undistributed to remain unclaimed by the holders of the certificates representing shares of Company Common Stock Certificates for six twelve months after the Effective Time shall be delivered returned by the Exchange Agent to IHKHDG, and any holders of shares of Company Common Stock prior to the Effective Time Certificates who have not theretofore complied with this Article II Section 3.2 shall thereafter look only receive delivery (subject to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or other similar law. If laws) of the HDG Common Stock issuable upon the conversion of their Company Certificates and any certificates representing dividends payable on such shares of HDG Common Stock, without any interest thereon only after delivering their Company Common Stock shall not have been surrendered immediately prior Certificates and letters of transmittal to the date on which any Merger Consideration in respect of such certificate would HDG, and otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretocomplying with Section 3.2.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As soon as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As reasonably practicable as of or promptly after the Effective TimeTime of the Merger, IHK the Surviving Corporation shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common StockPaying Agent, for exchange payment in accordance with this Article II, the funds necessary to pay the ---------- product of (i) the number Shares outstanding immediately prior to the Effective Time less the Actual Retained Share Number multiplied by (ii) the Cash Merger Price.
(b) As soon as practicable after the Effective TimeTime of the Merger, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shallShares, upon surrender to the Exchange Paying Agent of such certificate or certificates and acceptances acceptance thereof by the Exchange Paying Agent, shall be entitled to a certificate or certificates representing the number of full shares Retained Shares of IHK Common Stock received the Surviving Corporation, if any, to be retained by the holder thereof as Stock Consideration Retained Shares pursuant to this Agreement and the Cash Considerationamount of cash, if any, into which the number of shares of Company Common Stock Shares previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Paying Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective TimeTime of the Merger, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockShares which have been converted, in whole or in part, pursuant to this Agreement, into the right to receive cash, and if such certificates are presented to the Surviving Corporation Company for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementsuch cash. If any certificate for such shares of IHK Common Stock Retained Shares is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock Shares surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation Company or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock Retained Shares in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation Company or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b2.5(b), each certificate for shares of Company Common Stock Shares shall be -------------- deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Cash Merger Consideration as contemplated by Section 2.06Price for each Share (other than any Retained Share) and a new certificate for each Retained Share.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Shares not surrendered with respect to the shares of IHK Common Stock Retained Shares represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock Shares shall be paid to any such holder pursuant to Section 2.10(e2.5(e) until the surrender of the such certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with -------------- this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.Article
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, Holdings will send to each of the registered holders of CLS Labs Stock Certificates a letter of transmittal in customary form and containing such provisions as Holdings may reasonably specify and instructions for use in effecting the surrender of CLS Labs Stock Certificates in exchange for the Share Consideration. Upon surrender of a CLS Labs Stock Certificate to Holdings for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by Holdings, Holdings shall deliver to the holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common such CLS Labs Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to Certificate a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Holdings Common Stock previously represented by that such certificate or certificates holder has the right to receive pursuant to Section 1.6. All CLS Labs Stock Certificates so surrendered shall have been converted pursuant to be canceled. Until surrendered as contemplated by this Agreement. The Exchange Agent Section 1.8, each CLS Labs Stock Certificate shall accept such certificates upon compliance with such reasonable terms be deemed, from and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After after the Effective Time, there shall be no further transfer on to represent only the records of right to receive the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock Share Consideration in accordance with this Agreement. If any CLS Labs Stock Certificate shall have been lost, stolen or destroyed, Holdings may, in its discretion and as a condition precedent to the issuance of any certificate for such shares of IHK representing Holdings Common Stock is to be issued inor the payment of cash in lieu of fractional shares, or if cash is to be remitted to, a name other than that in which require the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition owner of such exchange lost, stolen or destroyed CLS Labs Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Holdings may reasonably direct) as indemnity against any claim that the certificate so surrendered shall may be properly endorsed, with signature guaranteed made against Holdings or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for with respect to such shares of IHK Common CLS Labs Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Certificate.
(cb) No dividends or other distributions declared or made with respect to shares of IHK Holdings Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common CLS Labs Stock Certificate with respect to the shares of IHK Holdings Common Stock represented thereby thereby, and no cash payment in lieu of any fractional shares of IHK Common Stock share shall be paid to any such holder, until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common surrenders such CLS Labs Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1.8 (at which time such certificates, these holder shall be entitled to receive all such dividends and distributions and such cash payment).
(c) Holdings and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of CLS Labs pursuant to this Agreement such amounts as Holdings or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of Person to whom such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stockamounts would otherwise have been paid.
(d) All cash paid upon Neither Holdings nor the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent Surviving Corporation shall be liable to any person in respect holder or former holder of any cash or capital stock of CLS Labs for any shares of IHK Holdings Common Stock from the Exchange Fund (or dividends or distributions with respect thereto), delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(bi) As soon as practicable after the Effective Time, each Netco Acquisition, as the holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shallthe Netco capital stock certificate, shall be entitled upon surrender thereof to the Exchange Agent of such certificate EqualNet or certificates and acceptances thereof by the Exchange Agent, be entitled its transfer agent to receive in exchange therefor (i) a certificate or certificates representing the number of full shares comprising the EqualNet Common Shares into which the shares of IHK Netco capital stock so surrendered shall have been converted as aforesaid, in such denominations and registered in such names as such holder may request, and (ii) a certificate or certificates representing the 2,000 shares comprising the EqualNet Preferred Shares into which the shares of Netco capital stock so surrendered shall have been exchanged as aforesaid, in such denominations and registered in such names as such holder may request. Unless and until such certificate shall be so surrendered and exchanged, no dividends or other distributions payable to the holders of EqualNet Common Stock received Shares or EqualNet Preferred Shares, as Stock Consideration of any time on or after the Effective Time, shall be paid on any certificate representing any of the Shares; provided, upon any such surrender and exchange of such certificate, there shall be paid to the Cash Considerationrecord holders of the certificates issued and exchanged therefor the amount, without interest thereon, of dividends and other distributions, if any, into which that theretofore were declared and became payable after the Effective Time with respect to the number of shares of Company EqualNet Common Stock previously represented by Shares or EqualNet Preferred Shares issued to such holder.
(ii) All EqualNet Common Shares and EqualNet Preferred Shares issued upon the surrender for exchange of the certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof for shares of Netco capital stock in accordance with normal exchange practicesthe terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares. After At and after the Effective Time, except for the transfer there shall be no further transfer registration of transfers on the records stock transfer books of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for the shares of IHK Common Stock in accordance with this AgreementNetco capital stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, certificates which prior to the Effective Time represented shares of Netco capital stock
(iii) If any certificate for such shares any of IHK the EqualNet Common Stock Shares or EqualNet Preferred Shares is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay have paid to the Surviving Corporation EqualNet or its transfer agent any transfer or other taxes required by reason of the issuance of certificates a certificate for such shares any of IHK the EqualNet Common Stock Shares or EqualNet Preferred Shares in a any name other than that of the registered holder of the certificate surrendered, or establish established to the satisfaction of the Surviving Corporation EqualNet or its transfer agent that such tax has been paid or is not applicablepayable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock Netco Acquisition shall be deemed designate at any time after the Effective Time Closing that number of the Merger EqualNet Common Shares to represent only be registered in each of TWG's and ADV's name and all of the right EqualNet Preferred Shares to receive upon such surrender be registered in the Merger Consideration as contemplated by Section 2.06name of MCM.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(giv) None of Merger EqualNet, Sub, Netco, the Company, IHK Surviving Corporation or the Exchange Agent their transfer agents shall be liable to any person in respect a holder of any cash or any shares of IHK Common Stock from the Exchange Fund delivered Netco capital stock for any amount properly paid to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Harris James T)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank ------------------------ each holder of an outstanding certificate representing shares of OmniVision- California Common Stock or trust company Preferred Stock may be asked to act as paying agent surrender the same for cancellation to an exchange agent, whose name will be delivered to holders prior to any requested exchange (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received or Preferred Stock, as Stock Consideration and the Cash Consideration, if anycase may be, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of OmniVision-California Common Stock or Preferred Stock shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock previously represented by or Preferred Stock, respectively, into which such shares of OmniVision-California Common Stock or Preferred Stock, as the case may be, were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further surrendered for transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented conversion or otherwise accounted for to the Surviving Corporation for transferor the Exchange Agent, they shall have and be canceled against delivery of cash and/or certificates for entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of IHK Common Stock or Preferred Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock or Preferred Stock of the Surviving Corporation so issued in accordance the Merger shall bear the same legends, if any, with this Agreementrespect to the restrictions on transferability as the certificates of OmniVision-California so converted and given in exchange therefore, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. If any certificate for such shares of IHK Common Stock the Surviving Corporation's stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank At or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, TTIS, or a transfer agent designated by TTIS (the "Transfer Agent") will send to each registered holder of an outstanding certificate or certificates which prior thereto represented shares of Company Stock on the Schedule of Stockholders (i) a letter of transmittal in customary form and containing such provisions as TTIS may reasonably specify, and (ii) instructions for use in effecting the surrender of Company Stock Certificates in exchange for payment of the Per Share Merger Consideration for each share of Company Common Stock shall, upon or Preferred Stock then due and payable. Upon surrender of a Company Stock Certificate to TTIS or the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Transfer Agent, as the case may be, together with a duly executed letter of transmittal and such other documents as may be reasonably required by TTIS or the Transfer Agent, the holder of the Company Common Stock or Preferred Stock represented by such Company Stock Certificate shall be entitled to a certificate or certificates representing receive in exchange therefor the number cash portion of full shares the Per Share Merger Consideration for each share then due and payable that such holder has the right to receive pursuant to the provisions of IHK Common Stock received as Stock Consideration this Section 1, and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicablecanceled. Until surrendered as contemplated by this Section 2.10(b)1.8, each certificate for shares of Company Common Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Time, to represent only the right to receive for each share held by such Stockholder upon such surrender payment of the cash portion of the Per Share Merger Consideration then due and payable and the right to receive on the First Payment Date or Second Payment Date as contemplated applicable, cash in the amount of the Per Share Merger Consideration payable in the First Payment or the Second Payment, as applicable. If any Company Stock Certificate shall have been lost, stolen or destroyed, TTIS may, in its discretion and as a condition precedent to payment of the Per Share Merger Consideration then due and payable for any shares represented by Section 2.06such lost, stolen or destroyed Company Stock Certificate, require the holder of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as TTIS may reasonably direct) as indemnity against any claim that may be made against TTIS or the Surviving Corporation with respect to such Company Stock Certificate.
(b) TTIS and the Surviving Corporation (or the Transfer Agent on their behalf) shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Company pursuant to this Agreement such amounts as TTIS or the Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law (or, in the alternative, TTIS or the Transfer Agent, at TTIS's option may request tax information and other documentation so no withholding is necessary). To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after Neither TTIS nor the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent Surviving Corporation shall be liable to any person in respect holder or former holder of capital stock of the Company for any cash or any shares of IHK Common Stock from such holder's share of the Exchange Fund Merger Consideration lawfully and properly delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company Common Stock shallmay be asked to surrender the same for cancellation to an exchange agent, upon surrender whose name will be delivered to holders prior to any requested exchange (the Exchange Agent of such certificate or certificates and acceptances thereof by the “Exchange Agent”), and each such holder shall be entitled to receive in exchange therefore a certificate or certificates representing the number of full shares of IHK Parent Common Stock received as Stock Consideration and the Cash Consideration, if anyStock, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Company Common Stock shall be deemed for all purposes to represent the number of shares of Company Parent Common Stock previously represented by Stock, into which such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common StockStock were converted in the Merger.
(b) The registered owner on the books and records of Parent or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to Parent or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Parent Common Stock represented by such outstanding certificate as provided above.
(c) Each certificate representing Parent Common Stock so issued in the Merger shall bear the same legends, if such certificates are presented any, with respect to the Surviving Corporation for transferrestrictions on transferability as the certificates of Company so converted and given in exchange therefore, they shall be canceled against delivery unless otherwise determined by the Board of cash and/or certificates for shares Directors of IHK Common Stock Parent in accordance compliance with this Agreement. applicable laws.
(d) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefore is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Parent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to Upon the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent Surviving ------------------------ Corporation of such each certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, the holder of such certificate shall be entitled to receive in exchange therefor the applicable number of shares (or applicable fraction of a share) of Parent Common Stock, and if the applicable number of shares (or applicable fraction of a share) of Parent Series B Preferred Stock, set forth on Exhibit 4 hereto, and such certificates are presented surrendered certificate shall thereafter be marked as canceled.
(b) Upon the surrender to the Surviving Corporation for transferof each certificate representing shares of Company Preferred Stock, they the holder of such certificate shall be canceled against delivery entitled to receive in exchange therefor the applicable number of cash and/or certificates for shares (or applicable fraction of IHK a share) of Parent Common Stock in accordance with this Agreement. Stock, and the applicable number of shares (or applicable fraction of a share) of Parent Series B Preferred Stock, set forth on Exhibit 4 hereto, and such surrendered certificate shall thereafter be marked as canceled.
(c) If any certificate for such shares of IHK Common Stock consideration is to be issued in, or if cash is paid to be remitted to, a name person other than that the person in which whose name the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of to such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance payment of certificates for such shares of IHK Common Stock in consideration to a name person other than that of the registered holder of the certificate so surrendered, or such person shall establish to the reasonable satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon At the surrender close of business on the day of the Effective Time, the stock transfer books of the Company shall be closed and thereafter there shall be no transfers of any shares of Company Stock. If, after the Effective Time, certificates previously representing Company Stock are presented to the Surviving Corporation, they shall be canceled and exchanged for exchange the applicable merger consideration, as provided in this Article II, subject to Section 262 of the DGCL with respect to appraisal rights.
(e) The Company shall request each holder of Company Common Stock or Company Preferred Stock to tender all certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of or Company Common Preferred Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered held by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited and concurrently with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the Merger, all such certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered marked as canceled and surrendered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Superior Trucks & Auto Supply Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act As promptly as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly practicable after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent shall mail or deliver to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of ATMI Common Stock whose shares were converted into the right to receive Holdings Common Stock pursuant to Section 1.9 hereof and the Certificate of Merger, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk, loss and title to such certificates shall pass, only upon delivery of the certificates to the Exchange Agent and shall be in such form and have such other provisions as Holdings may reasonably specify) and (ii) instructions for use in effecting the surrender of such certificates in exchange for a certificate representing Holdings Common Stock. Upon surrender of a certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Holdings, together with such letter of transmittal, duly executed, such agent shall promptly deliver in accordance with the instructions properly contained in such letter of transmittal a certificate for the benefit of the holders number of shares of Company Holdings Common Stock, for exchange in accordance with this Article IIStock to which such holder is entitled pursuant to Section 1.9.
(b) As soon as practicable after At the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented for shares of Company ATMI Common Stock shallshall cease to have any rights as a stockholder of ATMI. Each such holder of an outstanding certificate or certificates for shares of ATMI Common Stock converted in the Merger, upon surrender to the Exchange Agent of each such certificate or certificates and acceptances thereof by to the Exchange Agent, be entitled to a shall receive promptly in exchange for each such certificate or certificates representing the number of full shares of IHK Holdings Common Stock received as Stock Consideration and the Cash Consideration, if any, into to which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted holder is entitled pursuant to Section 1.9 of this Agreement. The Exchange Agent shall accept Pending such certificates upon compliance with surrender and exchange, such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company holder's certificate or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company ATMI Common Stock shall be deemed at any time after the Effective Time for all corporate purposes, by virtue of the Merger and without any action on the part of the holder thereof, to represent evidence only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Holdings Common Stock with a provided for under this Agreement. Unless and until any such outstanding certificates for shares of ATMI Common Stock shall be so surrendered, no dividend (cash or stock) payable to holders of record of shares of Holdings Common Stock as of any date after subsequent to the Effective Time shall be paid to the holder of any unsurrendered such outstanding certificate, but upon such surrender of such outstanding certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock there shall be paid to any such the record holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Holdings Common Stock issued in exchange therefor the amount of dividends, if any, without interest and less any taxes which may have been imposed thereon, that have theretofore become payable with respect to the number of those shares of IHK Holdings Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any by such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time but prior to upon such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stockexchange.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Advanced Technology Materials Inc /De/)
Exchange of Certificates. (a) Prior to After the mailing effective time of the Proxy Statementmerger, IHK shall appoint each holder of a bank or trust certificate theretofore evidencing outstanding shares of common stock of the merged company (other than shares held by dissenting stockholders and shares that are automatically canceled as hereinabove provided), upon surrender of the same to act as paying agent Continental Stock Transfer & Trust Company (the "Exchange Transfer Agent") or such other agent or agents as shall be appointed by Definition Technologies, shall be entitled to receive in exchange therefor a certificate or certificates evidencing the number of full Definition Technologies shares for which the payment shares of common stock of the Merger Considerationmerged company theretofore represented by the certificate or certificates so surrendered shall have been exchanged as provided in this paragraph 4, together with such warrants as comprise Units. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Timeelective time of the merger, the Transfer Agent will send a notice and transmittal form to each holder of an outstanding certificate or certificates which immediately prior thereto represented to the effective time of such merger evidenced shares of Company Common Stock shall, upon surrender common stock of the merged company and which is to be exchanged for Definition Technologies as provided in paragraph 3 hereof advising such stockholder of the terms of the exchange effected by such merger and the procedure for surrendering to the Exchange Transfer Agent (which may appoint forwarding agents) such certificate for exchange into one or more certificates evidencing Definition Technologies shares. Until so surrendered, each outstanding certificate which, prior to the Effective time of such certificate or certificates and acceptances thereof merger, represented common stock of the merged company (other than shares previously held by the Exchange Agent, dissenting stockholders) will be entitled deemed for all corporate purposes of Definition Technologies to a certificate or certificates representing evidence ownership of the number of full Definition Technologies shares for which the shares of IHK Common Stock received common stock of the merged company represented thereby were exchanged; provided, however, that until such outstanding certificates formerly evidencing common stock of the merged company are so surrendered, no dividend payable to holders of record of Definition Technologies shares as Stock Consideration and of any date subsequent to the Cash Consideration, if any, into which the number effective time of shares such merger or any cash in lieu of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted any fraction of a Definition Technologies share payable pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time 5 hereof shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with such outstanding certificates in respect to thereof. As soon as practicable after the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the effective time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment dateeach merger, the proportionate amount of dividends or other distributions with Transfer Agent will send a record date after the Effective Time but prior notice and transmittal form to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares an outstanding certificate of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") Definition which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect effective time of such merger evidenced shares of common stock of Definition, Ltd. as provided in paragraph 3 hereof, advising such stockholder of the terms of the distribution effected by such merger and the procedure for receiving from the Transfer Agent (which may appoint forwarding agents) such certificate would otherwise escheat to for one or become more certificates evidencing Definition Technologies share. After the property of any Government Authority, any such Merger Consideration in respect effective time of such certificate shall, as such time and to merger there shall be no further registry of transfers on the extent permitted by applicable law, become the property records of the Surviving Corporationmerged company of share of common stock of the merged company and, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fundif a certificate evidencing such shares is presented to Definition Technologies, as directed by IHK, on a daily basis, provided that such investments it shall be in obligations canceled and exchanged for a certificate evidencing shares of the United States of America or obligations fully guaranteed Definition Technologies common stock as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsherein provided.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates which immediately prior thereto to the Effective Time represented shares of Company Common Stock shallshall be entitled to receive in exchange therefor, upon surrender thereof to an exchange agent reasonably satisfactory to Parent and the Exchange Agent of such certificate or certificates and acceptances thereof by Company (the "Exchange Agent"), be entitled to a certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Considerationto which such holder is entitled pursuant to Section 3.1(a). Notwithstanding any other provision of this Agreement, if any, into which the number (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock previously have surrendered them for exchange as provided herein, no dividends or other distributions shall be paid with respect to any shares represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there no payment for fractional shares shall be no further transfer on the records of the Company or its transfer agent of made and (ii) without regard to when such certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any dividends or other distributions or any payment for fractional shares. Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, and if such certificates are presented there shall be paid to the Surviving Corporation for transferholder of such certificate the amount of any dividends or other distributions which theretofore became payable, they shall be canceled against delivery but which were not paid by reason of cash and/or certificates for the foregoing, with respect to the number of whole shares of IHK Parent Common Stock in accordance with this Agreement. represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(c) Within five days after the issuance of Effective Time, Parent shall make available to the Exchange Agent the certificates for such representing shares of IHK Parent Common Stock required to effect the exchanges referred to in a name other than that paragraph (a) above and cash for payment of any fractional shares referred to in Section 3.4.
(d) Within five days after the registered Effective Time, Parent shall cause the Exchange Agent to mail to each holder of the record of a certificate surrendered, or establish certificates that immediately prior to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for Effective Time represented outstanding shares of Company Common Stock (the "Company Certificates") (i) a letter of transmittal satisfactory to the Company and approved by it prior to Closing (which shall specify that delivery shall be deemed at any time after effected, and risk of loss and title to the Effective Time Company Certificates shall pass, only upon actual delivery of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid Company Certificates to the holder of any unsurrendered certificate Exchange Agent) and (ii) instructions for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment use in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until effecting the surrender of the certificate Company Certificates in exchange for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to into which the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other the Company Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementSection 3.1(a), each and the Company Certificates so surrendered shall be canceled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Parent Common Stock from the Exchange Fund or dividends or distributions thereon delivered to a public office official pursuant to any applicable abandoned property, escheat or similar lawlaws.
(e) Promptly following the date which is nine months after the Effective Time, the Exchange Agent shall deliver to Parent all cash, certificates (including any Parent Common Stock) and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. If Thereafter, each holder of a Company Certificate may surrender such Company Certificate to the Surviving Corporation and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock, without any certificates representing interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary, the Company or the Surviving Corporation shall be liable to a holder of shares of Company Common Stock for any shares of Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Company Certificate shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the date on which any Merger Consideration Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Article III. When authorizing such issuance in exchange therefor, the Board of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property Directors of the Surviving CorporationCorporation may, free in its discretion and clear as a condition precedent to the issuance thereof, require the owner of all claims such lost, stolen or interest of destroyed Company Certificate to give the Surviving Corporation such indemnity as it may reasonably direct as protection against any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To against the extent that there are losses Surviving Corporation with respect to such investmentsthe Company Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of one or certificates which prior thereto represented shares of Company more Equality Common Stock shallCertificates a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Equality Common Stock Certificates shall pass, only upon surrender delivery of the Equality Common Stock Certificates to the Exchange Agent Agent) and instructions for use in effecting the surrender of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Equality Common Stock received as Certificates in exchange for Allegiant Common Stock Consideration Certificates and the Cash Consideration, if any, any cash in lieu of fractional shares into which the number of shares of Company Equality Common Stock previously represented by such certificate Equality Common Stock Certificate or certificates surrendered Certificates shall have been converted pursuant to this Agreement. The Upon proper surrender of an Equality Common Stock Certificate for exchange and cancellation to the Exchange Agent shall accept such certificates upon compliance Agent, together with such reasonable terms and conditions as properly completed letter of transmittal, duly executed, the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there holder of such Equality Common Stock Certificate shall be no further transfer on the records entitled to receive in exchange therefor, as applicable, (i) an Allegiant Common Stock Certificate representing that number of the Company or its transfer agent of certificates representing whole shares of Company Allegiant Common StockStock to which such holder of Equality Common Stock shall have become entitled pursuant to the provisions of Section 1.4 hereof (after ----------- taking into account all shares of Equality Common Stock then held by such holder), and if (ii) a check representing the amount of any cash in lieu of fractional shares that such certificates are presented holder has the right to the Surviving Corporation for transfer, they shall be canceled against delivery receive in respect of cash and/or certificates for shares of IHK such Equality Common Stock Certificate, and the Equality Common Stock Certificate so surrendered shall forthwith be canceled. No interest will be paid or accrued on any cash in accordance with this Agreement. lieu of fractional shares payable to holders of Equality Common Stock Certificates.
(b) If any certificate for such shares of IHK Allegiant Common Stock Certificate is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Equality Common Stock Certificate surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate Equality Common Stock Certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed or accompanied by an appropriate instrument of transfer and otherwise in proper form for transfer transfer, and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Exchange Agent in advance any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK an Allegiant Common Stock Certificate in a any name other than that of the registered holder of the certificate Equality Common Stock Certificate surrendered, or required for any other reason, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares As of IHK Common Stock with a record date after the Effective Time close of business on the day immediately preceding the Closing Date, there shall be paid to no transfers on the holder stock transfer books of any unsurrendered certificate for shares Equality of Company Common Stock with respect to the shares of IHK Equality Common Stock. If a transfer of ownership of Equality Common Stock represented thereby and no cash payment is not registered in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of transfer records before the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time closing of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment datebooks, the proportionate amount of dividends Conversion Fund issuable 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 stock may be delivered to the transferree only if the Certificate or Certificates representing such stock is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer with all applicable stock transfer taxes paid. Equality shall cause its transfer agent to provide to Allegiant as soon as possible after the Effective Time a complete and verified list of IHK registered holders of Equality Common StockStock as of the Effective Time, including, to the extent available, names addresses, certificate numbers and tax pay identification numbers for all such holders.
(d) All cash paid Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Allegiant Common Stock shall be issued upon the surrender for exchange of certificates representing shares of Company Equality Common Stock in accordance Certificates, no dividend or distribution with the terms of this Article II (including any cash paid pursuant respect to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Allegiant Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not have been surrendered immediately prior entitle the owner thereof to the date on which vote or to any Merger Consideration in respect other rights of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property a shareholder of the Surviving Corporation, free and clear . In lieu of all claims or interest the issuance of any person previously such fractional share, the Surviving Corporation shall pay to each former shareholder of Equality, who otherwise would be entitled thereto.
(h) The Exchange Agent shall invest any to receive such fractional share, an amount of cash included in equal to the Exchange Fundproduct obtained by multiplying the fractional share interest to which such holder would otherwise be entitled by the average closing price of Allegiant Common Stock on the Nasdaq National Market, as directed by IHK, for the twenty trading days ending on a daily basis, provided that such investments shall be in obligations the fifth trading day before the date of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsEffective Time.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. On or after the effective date of the merger, each holder of a certificate theretofore evidencing outstanding shares of common stock of CHALON (a) Prior other than shares held by dissenting stockholders and shares that are automatically cancelled as hereinafter provided), upon surrender of the same to the mailing transfer agent of such other agent or agents as shall be appointed by SURETY, shall be entitled to receive in exchange therefor a certificate or certificates evidencing the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (pro-rata number of full SURETY shares for which the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) common stock of CHALON theretofore represented by the certificate or certificates so surrendered and entitled to be exchanged. As soon as practicable after the Effective Timeeffective date of the merger, the Transfer Agent will send a notice and transmittal form to each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect effective time of such merger evidenced shares of common stock of CHALON and which is to be exchanged for SURETY shares as provided for herein, advising such stockholder of the terms of the exchange effected by such merger and the procedure for surrendering to the Transfer Agent (which may appoint forwarding agents) such certificate would otherwise escheat for exchange into one or more certificates evidencing SURETY shares. Until so surrendered, each outstanding certificate which, prior to or become the property effective date of such merger, represented common stock of CHALON (other than shares previously held by dissenting stockholders) will be deemed for all corporate purposes of SURETY to evidence ownership of the pro-rata number of full SURETY shares for which the shares of common stock of CHALON represented thereby were exchanged; provided, however, that until such outstanding certificates formerly evidencing common stock of CHALON are surrendered, no dividend payable to holders of record of SURETY shares as of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and date subsequent to the extent permitted by applicable law, become the property effective date of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.such
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable 7.2.1 At and after the Effective Time, each holder of an certificate representing outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shallor Company Preferred Stock, upon surrender to the Exchange Agent of such certificate and each warrant agreement or certificates and acceptances thereof by the Exchange Agentother document representing outstanding Company Warrants, be entitled to a certificate or certificates representing will represent the number of full shares of IHK Concur Common Stock received as Stock Consideration and the Cash Consideration, if any, into which such shares of Company Common Stock or Company Preferred Stock or such Company Warrants, as applicable, have been converted, and such shares of Concur Common Stock will be deemed registered in the number name of the holder of such certificate, agreement or other document. Promptly following the Effective Time, Concur will cause its transfer agent to mail to each holder of record of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof Preferred Stock or Company Warrants (i) instructions for use in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until effecting the surrender of the certificate certificates for such shares, or the agreements or other documents for the Company Warrants, as applicable (collectively, the "COMPANY CERTIFICATES"), in exchange for certificates representing Concur Common Stock and (ii) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon delivery of the Company Certificates to the transfer agent and shall be in such form and have such other provisions as Concur and the Company may reasonably specify). Each such holder will then promptly surrender to the transfer agent, for cancellation, all Company Certificates for such holder's shares of Company Common Stock with respect to the shares of IHK Common and Preferred Stock represented thereby in accordance with this Article IIand Company Warrants. Subject to the effect of applicable laws, following surrender of If a Company Certificate for any such certificatesshares or warrant has been lost, these shall be paid to the holder of the shares or warrant may furnish the transfer agent with an affidavit of lost certificate representing whole and, if requested by the transfer agent or if reasonably requested by Concur, a bond in such amount as the transfer agent or Concur may reasonably request. Upon surrender of a Company Certificate to the transfer agent for cancellation (or upon delivery of such affidavit and any such bond) together with a duly executed letter of transmittal and such other documents as may be reasonably required by the transfer agent, the transfer agent will issue to such surrendering holder certificate(s) for the number of shares of IHK Concur Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and 2.1 hereof, less the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Concur Common StockStock deposited into escrow pursuant to Section 2.4 hereof, and (ii) at the appropriate payment date, the proportionate 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 Concur will distribute any cash payable with respect to such whole under Section 2.1.4.
7.2.2 All shares of IHK Concur Common Stock.
Stock (dand, if applicable, cash in lieu of fractional shares) All cash paid delivered upon the surrender for exchange of certificates representing shares of Company Common Stock Certificates in accordance with the terms hereof will be delivered to the registered holder or placed in escrow with the Escrow Agent, as applicable. After the Effective Time, there will be no further registration of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction transfers of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions or Company Preferred Stock or the Company Warrants on the stock transfer books of this Agreementthe Company. If, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive Time, Company Certificates are presented for transfer or for any other reason, they will be canceled and exchanged and certificates therefor will be delivered or placed in escrow as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, provided in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any7.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank At or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeClosing Date, each Parent will send to the holders of Company Stock Certificates a letter of transmittal in customary form and containing such provisions as Parent may reasonably specify, and instructions for use in effecting the surrender of Company Stock Certificates in exchange for cash and for certificates representing Parent Common Stock in accordance with the terms of this Section 1. Upon surrender of a Company Stock Certificate to Parent for exchange, together with a duly executed letter of transmittal and such other documents as may be reasonably required by Parent, the Company Stock Certificate so surrendered shall be canceled and the holder of an outstanding certificate or certificates which prior thereto represented shares of such Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to a certificate or certificates representing receive in exchange therefor:
(i) the number amount of full shares of IHK Common Stock received as Stock Consideration and cash equal to the Closing Cash Consideration, if any, into which multiplied by the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records capital stock of the Company or its transfer agent represented by the surrendered Company Stock Certificate; and
(ii) a certificate representing the number of certificates representing whole shares of Company Parent Common Stock, and if such certificates are presented Stock equal to the Surviving Corporation for transfer, they shall be canceled against delivery Applicable Fraction multiplied by the number of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason capital stock of the issuance of certificates for such shares of IHK Common Company represented by the surrendered Company Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicableCertificate. Until surrendered as contemplated by this Section 2.10(b)1.8, each certificate for shares of Company Common Stock Certificate shall be deemed at any time deemed, from and after the Effective Time of the Merger Closing Date, to represent only the right to receive upon such surrender the Merger Consideration cash, a certificate representing shares of Parent Common Stock, (and cash in lieu of any fractional share of Parent Common Stock) as contemplated by this Section 2.061. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the delivery of any cash and the issuance of any certificate representing Parent Common Stock require the owner of such lost, stolen or destroyed Company Stock Certificate to provide an appropriate affidavit and to deliver a bond (in such sum as Parent may reasonably direct) as indemnity against any claim that may be made against Parent or the Surviving Corporation with respect to such Company Stock Certificate.
(cb) No dividends or other distributions declared or made with respect to shares of IHK Parent Common Stock with a record date after the Effective Time Closing Date shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Parent Common Stock represented thereby thereby, and no cash payment in lieu of any fractional shares of IHK Common Stock share shall be paid to any such holder, until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of surrenders such Company Common Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1.8 (at which time such certificates, these holder shall be paid entitled to the holder of the certificate representing whole receive all such dividends and distributions and such cash payment).
(c) No fractional shares of IHK Parent Common Stock shall be issued in connection therewithwith the Merger, without interest (i) at the time and no certificates for any such fractional shares shall be issued. In lieu of such surrender the amount of fractional shares, any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares capital stock of the Company Common Stock after the Effective Time who would otherwise have been be entitled to receive as Stock Consideration a fraction of a share of IHK Parent Common Stock (after taking into account aggregating all such fractional shares of Company Common Stock delivered by issuable to such holder) shall receiveshall, upon surrender of such holder's Company Stock Certificate(s), be paid in lieu thereofcash the dollar amount (rounded to the nearest whole cent), a cash payment (without interest) equal to , determined by multiplying such fraction multiplied by the Cash ConsiderationDesignated Parent Stock Price (as defined in Section 1.4).
(fd) Any portion Parent and the Surviving Corporation shall be entitled to deduct and withhold from any consideration payable or otherwise deliverable to any holder or former holder of capital stock of the Merger Consideration deposited with the Exchange Agent Company pursuant to this Section 2.10 (Agreement such amounts as Parent or the "Exchange Fund") which remains undistributed Surviving Corporation may be required to deduct or withhold therefrom under the Code or under any provision of state, local or foreign tax law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered Person to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who whom such amounts would otherwise have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anybeen paid.
(ge) None of Merger Sub, Neither Parent nor the Company, IHK or the Exchange Agent Surviving Corporation shall be liable to any person in respect holder or former holder of any cash or capital stock of the Company for any shares of IHK Parent Common Stock from the Exchange Fund Stock, dividends or distributions with respect thereto, or for any cash amounts, delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable From and after the Effective Time, each holder of an outstanding certificate or certificates ("CERTIFICATES") which prior thereto represented shares of Company Platform Common Stock, Platform Class B Common Stock shall, upon surrender or Platform Preferred Stock immediately prior to the Exchange Agent of such certificate or certificates Effective Time shall have the right to surrender each Certificate to ESS, and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full whole shares of IHK ESS Common Stock received as Stock Consideration and (other than the Cash Consideration, if any, Escrow Shares) into which the number of shares of Company Platform Common Stock, Platform Class B Common Stock previously represented or Platform Preferred Stock evidenced by such certificate or certificates each of the Certificates so surrendered shall have been converted pursuant to the provisions of Article II of this Agreement. The Exchange Agent surrender of Certificates shall accept be accompanied by duly completed and executed Letters of Transmittal in such certificates upon compliance with form as may be mutually agreed by ESS and Platform. Until surrendered, each outstanding Certificate which prior to the Effective Time represented shares of Platform Common Stock, Platform Class B Common Stock or Platform Preferred Stock shall be deemed for all corporate purposes to evidence ownership of the number of whole shares of ESS Common Stock into which the shares of Platform Common Stock, Platform Class B Common Stock or Platform Preferred Stock have been converted but shall, subject to applicable dissenters rights under California Law and Section 2.3, have no other rights. Subject to dissenters rights under California Law and Section 2.3 from and after the Effective Time, the holders of shares of Platform Common Stock, Platform Class B Common Stock or Platform Preferred Stock shall cease to have any rights in respect of such reasonable terms shares and conditions as their rights shall be solely in respect of the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practicesESS Common Stock into which such shares of Platform Common Stock, Platform Class B Common Stock or Platform Preferred Stock have been converted. After From and after the Effective Time, there shall be no further transfer registration of transfers on the records of the Company or its transfer agent Platform of certificates representing shares of Company Platform Common Stock, and if such certificates are presented Platform Class B Common Stock or Platform Preferred Stock outstanding immediately prior to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for Effective Time.
(b) If any shares of IHK ESS Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is are to be issued in, or if cash is to be remitted to, in the name of a name person other than that the person in which whose name the certificate for shares of Company Common Stock Certificate(s) surrendered for in exchange therefor is registered, it shall be a condition to the issuance of such exchange shares that (i) the certificate Certificate(s) so surrendered shall be transferable, and shall be properly endorsedassigned, with signature guaranteed endorsed or accompanied by appropriate stock powers, (ii) such transfer shall otherwise in be proper form for transfer and that (iii) the person requesting such exchange transfer shall pay to the Surviving Corporation ESS, or its transfer agent exchange agent, any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, foregoing or establish to the satisfaction of the Surviving Corporation or its transfer agent ESS that such tax has taxes have been paid or is are not applicablerequired to be paid. Until surrendered as contemplated by this Section 2.10(b)Notwithstanding the foregoing, each certificate neither ESS or Platform shall be liable to a holder of shares of Platform Common Stock, Platform Class B Common Stock or Platform Preferred Stock for shares of Company ESS Common Stock shall be deemed at any time after the Effective Time of the Merger issuable to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender provisions of Article II of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund Agreement that are delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(hc) The Exchange Agent In the event any Certificate shall invest any cash included 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, ESS shall issue in exchange for such lost, stolen or destroyed Certificate the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be shares of ESS Common Stock issuable in obligations exchange therefor pursuant to the provisions of Article II of the United States Agreement. The Board of America Directors of ESS, may in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or obligations fully guaranteed as destroyed Certificate to principal and interest by the United States of America, provide to ESS an indemnity agreement against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against ESS with respect to such investmentsthe Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ess Technology Inc)
Exchange of Certificates. (a) Prior From and after the Effective Time, all Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing shares of Company Common Stock shall cease to have any rights with respect thereto, except the mailing of the Proxy Statementright to receive in exchange therefor, IHK shall appoint a bank upon surrender thereof to American Stock Transfer & Trust Company or trust company to act as paying such other agent designated by Parent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Considerationto which such holder is entitled pursuant to Section 3.1. Notwithstanding any other provision of this Agreement, if any, into which the number (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock previously have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any Parent Common Stock represented by such certificate or certificates surrendered shall have been converted pursuant certificates, and (ii) without regard to this Agreement. The Exchange Agent shall accept when such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any Parent Common Stock dividends. Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, and if such certificates are presented there shall be paid to the Surviving Corporation for transferholder of such certificate the amount of any dividends which theretofore became payable, they shall be canceled against delivery but which were not paid by reason of cash and/or certificates for the foregoing, with respect to the number of whole shares of IHK Parent Common Stock in accordance with this Agreement. represented by the certificate or certificates issued upon such surrender.
(b) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay have paid to the Surviving Corporation Parent or its transfer agent any applicable transfer or other taxes required by reason of such issuance.
(c) Promptly after the issuance of Effective Time, Parent shall make available to the Exchange Agent the certificates for such representing shares of IHK Parent Common Stock required to effect the exchanges referred to in a name other than that of paragraph (a) above.
(d) Promptly after the registered Effective Time, the Exchange Agent shall mail to each holder of the record of a certificate surrendered, or establish certificates that immediately prior to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for Effective Time represented outstanding shares of Company Common Stock shall be deemed at any time after (the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c"Company Certificates") No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the time Company Certificates shall pass, only upon actual delivery of such surrender the amount of any cash payable in lieu of fractional shares Company Certificates to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common StockExchange Agent), and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon instructions for use in effecting the surrender of the Company Certificates in exchange for exchange of certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall reasonably require and the holder of such Company Certificates shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to into which the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other the Company Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementSection 3.1, each and the Company Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Parent Common Stock from the Exchange Fund or dividends or distributions thereon delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any laws.
(e) Promptly following the date which is nine months after the Effective Time, the Exchange Agent shall deliver to Parent all certificates (including certificates representing shares of any Parent Common Stock), property and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Company Certificate may surrender such Company Certificate to Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock shall not have been surrendered immediately prior to which such person is entitled, without any interest thereon. Notwithstanding the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authorityforegoing, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses none of the Exchange Agent, Parent, Subsidiary or the Surviving Corporation shall be liable to a holder of Company Common Stock for any Parent Common Stock delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Section 3.3. When authorizing such payment in exchange therefor, the Board of Directors of Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificate to give Parent such indemnity as it may reasonably direct as protection against any claim that may be made against Parent or the Surviving Corporation with respect to the Company Certificate alleged to have been lost, stolen or destroyed.
Appears in 1 contract
Sources: Merger Agreement (C Cor Net Corp)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeDate, ImageX shall make available, and each holder shareholder of an outstanding certificate or certificates which the Company immediately prior thereto represented shares of Company Common Stock shallto the Effective Time will be entitled to receive, upon surrender to the Exchange Agent ImageX of such certificate one or more certificates and acceptances thereof by the Exchange Agentrepresenting Company Common Stock for cancellation, be entitled to a certificate or certificates representing the number of full shares of IHK ImageX Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by that such certificate or certificates surrendered shall have been converted shareholder is entitled to receive pursuant to Section 1.7.1 hereof; provided, however, that the certificates representing the Holdback Shares shall be delivered to ImageX in accordance with this Agreement. The Exchange Agent shares of ImageX Common Stock that each such shareholder shall accept such certificates upon compliance with such reasonable terms and conditions as be entitled to receive pursuant to the Exchange Agent may impose Merger shall be deemed to effect an orderly exchange thereof in accordance with normal exchange practices. After have been issued at the Effective Time, there . No interest shall be no further transfer accrue on the records of Merger Consideration. If the Company Merger Consideration (or its transfer agent of any portion thereof) is to be delivered to any person other than the person in whose name the certificate or certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of to such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent ImageX any transfer or other taxes required by reason of the issuance payment of certificates for such shares of IHK Common Stock in the Merger Consideration to a name person other than that of the registered holder of the certificate or certificates so surrendered, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent ImageX that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b)Notwithstanding the foregoing, each certificate for shares of Company Common Stock neither ImageX nor any other party hereto shall be deemed at any time after the Effective Time of the Merger liable to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the for any Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office official pursuant to any applicable abandoned property, escheat or and similar lawlaws. If In the event that any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the shareholder claiming such certificate to be lost, stolen or destroyed, ImageX shall issue in exchange for such lost, stolen or destroyed certificate the shares of ImageX Common Stock that such shareholder is entitled to receive pursuant to Section 1.7.1; provided, however, that ImageX may in its discretion and as a condition precedent to the date on which issuance thereof, require such shareholder to provide ImageX with an indemnity agreement against any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against ImageX with respect to such investmentsthe certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Imagex Com Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of If the Merger Consideration. As is approved by the stockholders of or promptly after the Effective Timeboth Family and Adcare, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate Certificate or certificates which prior thereto represented Certificates may, but is not required to, surrender such Certificate or Certificates to Family or to such bank or trust company designated by Family to act as agent for the surrender and exchange of the Certificates along with such other documents as may be deemed necessary by Family, the Surviving Corporation or Adcare effectively to surrender and exchange such Certificate or Certificates. From and after the Effective Time and until Certificates are surrendered for exchange or registration of transfer, all Certificates shall be deemed for all purposes to represent and evidence the number of shares of Company Adcare Common Stock shallinto which they were so converted under the terms of Section 3.1(a) of this Agreement.
(b) After the Effective Time, upon surrender whenever Certificates are presented for exchange or registration of transfer, Adcare shall cause to the Exchange Agent of such certificate or certificates and acceptances be issued in respect thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Adcare Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of surrendered shares of Company Common Family Capital Stock previously represented by such certificate or certificates surrendered shall have been were so converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable under the terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent Section 3.1(a) of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate certificates for such shares of IHK Adcare Common Stock is are to be issued in, delivered to or if cash is to be remitted to, in the name of a name person other than that the person in which the certificate for shares of Company Common Stock whose name a surrendered for exchange Certificate is registered, it shall be a condition of such exchange that the certificate so surrendered Certificate shall be properly endorsed, with signature guaranteed endorsed or otherwise be in proper form for transfer and that the person requesting such exchange the transfer shall pay to the Surviving Corporation or its transfer agent any Adcare all transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock change in a name other than that of the registered holder of the certificate surrendered, ownership or establish to the Adcare’s satisfaction of the Surviving Corporation or its transfer agent that such tax has taxes have been paid or is are not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall required to be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06paid.
(c) No dividends If any Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit in form and substance satisfactory to Adcare of that fact by the person claiming the certificate to be lost, stolen or destroyed (“Lost Stock Affidavit”) and subject to such other conditions as Adcare may reasonably impose, Adcare shall issue in exchange for the lost, stolen or destroyed certificate a certificate representing the number of shares of Adcare Common Stock into which the shares of Family Capital Stock represented by the lost, stolen, or destroyed certificate were so converted under the terms of Section 3.1(a) of this Agreement. When authorizing the issuance of the shares of Adcare Common Stock in exchange therefore, Adcare may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such a certificate to give Adcare a bond or other distributions with respect indemnity in any amount reasonably satisfactory to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of Adcare against any unsurrendered certificate for shares of Company Common Stock claim arising against Adcare with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends stolen or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stockdestroyed certificate.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementABC Funding hereby authorizes American Stock Transfer Company, IHK shall appoint a bank or trust company to act as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders to send to each holder of shares of Company Common Stock, Energy Venture Stock which shall have been converted into the ABC Stock an appropriate letter of transmittal for purposes of surrendering such holder's certificates for such shares for exchange in accordance with this Article IIpursuant hereto.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon Date and after surrender to the Exchange Agent of any certificate which prior to the Effective Date shall have represented any shares of Energy Venture Stock (a "Certificate"), subject to the provisions of Section 2.5(d) hereof, the Exchange Agent shall cause to be distributed to the person in whose name such certificate Certificate shall have been registered, or in accordance with the written instructions transmitted to the Exchange Agent by such person, certificates and acceptances thereof registered in the name of such person representing the ABC Stock to which such person shall be entitled as described in Section 2.1 hereof. Until surrendered as contemplated by the Exchange Agentpreceding sentence, each Certificate shall be entitled deemed on and after the Effective Date to a certificate represent only the right to receive the certificates contemplated by the preceding sentence.
(c) No dividends declared on or after the Effective Date with respect to ABC Stock issued in the Merger and payable to the holders of record thereof after the Effective Date shall be paid to the holder of an unsurrendered Certificate until such Certificate shall be surrendered as provided herein, but (i) upon such surrender there shall be paid to the person in whose name the certificates representing ABC Stock shall be issued the number amount of full shares dividends theretofore paid with respect to ABC Stock as of IHK Common Stock received as Stock Consideration and any date subsequent to the Cash Consideration, if any, into which Effective Date based on the number of shares of Company Common ABC Stock previously represented received by such certificate person and (ii) at the appropriate payment date or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Timesoon as practicable thereafter, there shall be paid to such person the amount of dividends payable with respect to Energy Venture Stock. On surrender of a Certificate, no further transfer on interest shall be payable with respect to the records payment of the Company or its transfer agent of such dividends.
(d) If any certificates representing shares of Company Common Stock, and if such certificates ABC Stock are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name person other than that the person in which whose name the certificate for shares of Company Common Stock Certificate surrendered for in exchange therefor is registered, it shall be a condition of such exchange the issuance thereof that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common representing ABC Stock in a any name other than that of the registered holder of the certificate Certificate surrendered, or otherwise required, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificatespayable.
(e) Notwithstanding In the event any other provisions Certificates shall have been lost, stolen or destroyed, upon the making of this Agreementan affidavit of that fact by the person claiming such Certificate to be lost, each holder stolen or destroyed and, if required by ABC Funding, the posting by such person of a bond in such amount, form and with such surety as ABC Funding may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the number of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common ABC Stock (after taking into account all shares of Company Common Stock delivered by such holderand unpaid dividends and distributions) shall receive, in lieu thereof, a cash payment (without interest) equal pursuant to such fraction multiplied by the Cash Considerationthis Agreement.
(f) Any portion ABC Funding, as the sole stockholder of Subsidiary, shall, upon surrender to the Surviving Corporation of certificates representing the common stock of the Merger Consideration deposited with Subsidiary, receive a certificate representing the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders number of shares of Company Common the Energy Venture Stock prior to into which such common stock of the Effective Time who Subsidiary shall have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office been converted pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoSection 2.1 hereof.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (ABC Funding, Inc)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK the Surviving Corporation shall deposit deposit, or shall cause to be deposited, with Computershare, the aggregate transfer agent and registrar for the shares of Surviving Corporation Common Stock and the exchange agent for purposes of the Merger Consideration with (the “Exchange Agent Agent”), for the benefit of the holders of Certificates, shares of Company Surviving Corporation Common Stock, in an amount sufficient to effect the exchange of all Certificates for exchange in accordance shares of SBA Common Stock pursuant to Section 2.1(a). In addition, the Surviving Corporation shall deposit, or shall cause to be deposited, with this Article IIthe Exchange Agent, for the benefit of holders of Certificates as necessary from time to time after the Effective Time, any dividends or other distributions payable pursuant to Section 2.4(c).
(b) As soon as reasonably practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each holder of an outstanding certificate or certificates record of a Certificate (i) a letter of transmittal which prior thereto represented shares shall specify that delivery shall be effected, and risk of Company Common Stock shallloss and title to the Certificate shall pass, only upon surrender delivery of the Certificate to the Exchange Agent and shall be in such form and have such other provisions as the Surviving Corporation may reasonably specify, and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates evidencing shares of Surviving Corporation Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, the Certificate so surrendered shall forthwith be cancelled, and the holder of such certificate or certificates and acceptances thereof by the Exchange Agent, Certificate shall be entitled to receive in exchange therefor (A) a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which evidencing the number of shares of Company Surviving Corporation Common Stock previously represented by which such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon in respect of the Certificate surrendered pursuant to the provisions of this Article II and (B) the payment of any dividends and other distributions that such holder has the right to receive pursuant to Section 2.4(c). No interest shall be paid or accrued on any Merger consideration or on unpaid dividends and distributions payable to holders of Certificates. In the event of a surrender of a Certificate representing shares of SBA Common Stock in exchange for a certificate evidencing shares of Surviving Corporation Common Stock in the Merger Consideration as contemplated name of a person other than the person in whose name such shares of SBA Common Stock are registered, a certificate evidencing the proper number of shares of Surviving Corporation Common Stock may be issued to such a transferee if the Certificate evidencing such securities is presented to the Exchange Agent, accompanied by Section 2.06all documents required by the Exchange Agent or the Surviving Corporation to evidence and effect such transfer and to evidence that any applicable transfer taxes have been paid.
(c) No dividends or other distributions with declared by the Surviving Corporation in respect to shares of IHK Surviving Corporation Common Stock with a Stock, the record date for which is at or after the Effective Time Time, shall be paid by the Exchange Agent to the any holder of any unsurrendered certificate Certificate until such Certificate is surrendered for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby exchange in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificatesCertificate, these the Exchange Agent shall be paid release to the holder of the certificate certificates representing whole shares of IHK Surviving Corporation Common Stock issued in connection therewithexchange therefor, without interest interest, (iA) at the time of such surrender surrender, the previously reserved amount of any cash payable in lieu of fractional shares equal to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid payable with respect to such whole shares of IHK Surviving Corporation Common StockStock that had been held by the Exchange Agent for the benefit of such holder, and (iiB) at the appropriate payment date, the proportionate amount of dividends or other distributions payable with respect to such whole shares of Surviving Corporation Common Stock with a record date after the Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stocksurrender.
(d) All cash paid upon At and after the surrender Effective Time, there shall be no transfers on the stock transfer books of SBA of shares of SBA Common Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for exchange of certificates representing shares of Company Surviving Corporation Common Stock in accordance with the terms of procedures set forth in this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificatesII.
(e) Notwithstanding any other provisions Any former shareholders of SBA who have not complied with this Agreement, each holder of shares of Company Common Stock Article II within one year after the Effective Time who would otherwise have been entitled shall thereafter look only to receive as the Surviving Corporation for release of (A) their previously reserved shares of Surviving Corporation Common Stock Consideration a fraction deliverable in respect of a each share of IHK SBA Common Stock such stockholder holds as determined pursuant to this Agreement and (after taking into account all B) any dividends or other distributions paid on such shares for the benefit of Company Common Stock delivered by such holder) shall receiveshareholders, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Considerationany interest thereon.
(f) Any portion In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Merger Consideration deposited person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond in such reasonable amount as the Surviving Corporation may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent or the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Certificate the shares of Surviving Corporation Common Stock deliverable in respect thereof pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anyAgreement.
(g) None of Merger SubSBA, the CompanySurviving Corporation, IHK or the Exchange Agent or any other person shall be liable to any person in respect former holder of shares or securities of SBA for any cash or any shares of IHK Common Stock from the Exchange Fund amount properly delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretolaws.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior Gold Banc shall make available to Midwest Capital Management, Inc. and Gold Bank, which are hereby designated as the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent exchange agents (the "Exchange AgentAgents") for the payment of the Merger Consideration. As of or promptly ), at and after the Effective Time, IHK such number of shares of Gold Banc Common Stock as shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of be issuable to the holders of shares of Company Common Stock, for exchange Stock in accordance with this Article II.
(b) Section 2.7 hereof. As soon as practicable after the Effective TimeClosing Date, Gold Banc, on behalf of the Exchange Agents, shall mail to each holder of an record of a certificate that immediately prior to the Closing Date represented outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon (i) a form letter of transmittal and (ii) instructions for effecting the surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or for exchange into certificates surrendered shall have been converted pursuant to this Agreementof Gold Banc Common Stock. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as Gold Banc Common Stock into which the Exchange Agent may impose to effect an orderly exchange thereof Company Common Stock is being converted in accordance with normal exchange practices. After the Effective Time, there Section 2.7 hereof shall be no further transfer on the records delivered to each shareholder of the Company as set forth in a letter of transmittal. Notwithstanding the foregoing, the Company will use commercially reasonable efforts to have available at Closing as many Company Common Stock certificates as possible and Gold Banc will make available to the Company and its shareholders as many letters of transmittal and instructions for surrendering the Company Common Stock as requested.
(b) Notwithstanding any other provision herein, no fractional shares of Gold Banc Common Stock and no certificates or its transfer agent scrip therefor or other evidence of ownership thereof will be issued. All fractional shares of Gold Banc Common Stock to which a holder of Company Common Stock would otherwise be entitled to under Section 2.7 hereof shall be aggregated. If a fractional share results from such aggregation, such shareholder shall be entitled, after the Effective Time and upon the surrender of such shareholder's certificate or certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender from the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no Exchange Agents an amount in cash payment in lieu of such fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect share equal to the shares product of IHK Common such fraction and the Average Gold Banc Stock represented thereby in accordance with this Article IIPrice. Subject Gold Banc shall make available to the effect of applicable lawsExchange Agents, following surrender of any such certificatesas required from time to time, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stocknecessary for this purpose.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeDate, Parent shall make available, and each holder shareholder of an outstanding certificate or certificates which the Company immediately prior thereto represented shares of Company Common Stock shallto the Effective Time will be entitled to receive, upon surrender to the Exchange Agent Parent of such certificate one or more certificates and acceptances thereof by the Exchange Agentrepresenting Company Common Stock or Company Preferred Stock for cancellation, be entitled to a certificate or certificates representing the number of full shares of IHK Parent Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by that such certificate or certificates surrendered shall have been converted shareholder is entitled to receive pursuant to Section 1.7.1 hereof; provided, however, that the certificates representing the Holdback Shares shall be delivered to the Escrow Agent in accordance with this Agreement. The Exchange Agent shares of Parent Common Stock that each such shareholder shall accept such certificates upon compliance with such reasonable terms and conditions as be entitled to receive pursuant to the Exchange Agent may impose Merger shall be deemed to effect an orderly exchange thereof in accordance with normal exchange practices. After have been issued at the Effective Time, there . No interest shall be no further transfer accrue on the records of Total Merger Consideration. If the Company Total Merger Consideration (or its transfer agent of any portion thereof) is to be delivered to any person other than the person in whose name the certificate or certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Preferred Stock surrendered for in exchange therefor is registered, it shall be a condition of to such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent Parent any transfer or other taxes required by reason of the issuance payment of certificates for such shares of IHK Common Stock in the Total Merger Consideration (or any portion thereof) to a name person other than that of the registered holder of the certificate or certificates so surrendered, or shall establish to the satisfaction of the Surviving Corporation or its transfer agent Parent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b)Notwithstanding the foregoing, each certificate for shares of Company Common Stock neither Parent nor any other party hereto shall be deemed at any time after the Effective Time of the Merger liable to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as or Company Preferred Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any for any portion of the Total Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office official pursuant to any applicable abandoned property, escheat or and similar lawlaws. If In the event that any certificates representing shares of Company Common Stock or Company Preferred Stock shall not have been surrendered immediately prior lost, stolen or destroyed, upon the making of an affidavit of that fact by the shareholder claiming such certificate to be lost, stolen or destroyed, Parent shall issue in exchange for such lost, stolen or destroyed certificate the shares of Parent Common Stock that such shareholder is entitled to receive pursuant to Section 1.7.1; provided, however, that Parent may in its discretion and as a condition precedent to the date on which issuance thereof, require such shareholder to provide Parent with an indemnity agreement against any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided claim that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses against Parent with respect to such investmentsthe certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK MILLENNIUM shall enter into an agreement with, and shall deposit with, Securities Law Institute, or such other agent or agents as may be satisfactory to MILLENNIUM and MIDWEST (the aggregate Merger Consideration with the “Exchange Agent Agent”), for the benefit of the holders of shares of Company Common StockMIDWEST Shares, for exchange through the Exchange Agent in accordance with this Article III: (i) certificates representing the appropriate number of MILLENNIUM Shares to be issued to holders of MIDWEST Shares issuable pursuant to Section 1.7 in exchange for outstanding MIDWEST Shares.
(b) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of an outstanding record of a certificate or certificates which immediately prior thereto to the Effective Time represented outstanding MIDWEST Shares (the “Certificates”) whose shares were converted into the right to receive MILLENNIUM Shares pursuant to Section 1.7: (i) a letter of Company Common Stock shalltransmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon surrender delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as MIDWEST and MILLENNIUM may reasonably specify) and (ii) instructions for use in effecting the surrender of such certificate or the Certificates in exchange for certificates and acceptances thereof by representing MILLENNIUM Shares. Upon surrender of a Certificate to the Exchange Agent, together with such letter of transmittal, duly executed, and any other required documents, the holder of such Certificate shall be entitled to receive in exchange therefore a certificate or certificates representing that number of whole MILLENNIUM Shares and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of MIDWEST Shares which are not registered in the transfer records of MIDWEST, a certificate representing the proper number of full shares of IHK Common Stock received as Stock Consideration and MILLENNIUM Shares may be issued to a transferee if the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by Certificate representing such certificate or certificates surrendered shall have been converted pursuant MIDWEST Shares is presented to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose accompanied by all documents required by the Exchange Agent or MILLENNIUM to evidence and effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and by evidence that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any applicable stock transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 2.10(b)1.8, each certificate for shares of Company Common Stock Certificate shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration certificate representing MILLENNIUM Shares as contemplated by this Section 2.061.8.
(c) No dividends or other distributions declared or made after the Effective Time with respect to shares of IHK Common Stock MILLENNIUM Shares with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Common Stock MILLENNIUM Shares represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time record of such Certificate shall surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common StockCertificate.
(d) In the event that any Certificate for MIDWEST Shares or MILLENNIUM Shares shall have been lost, stolen or destroyed, the Exchange Agent shall issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof such MILLENNIUM Shares and cash in lieu of fractional MILLENNIUM Shares, if any, as may be required pursuant to this Agreement; provided, however, that MILLENNIUM or the Exchange Agent, may, in its respective discretion, require the delivery of a suitable bond, opinion or indemnity.
(e) All cash paid MILLENNIUM Shares issued upon the surrender for exchange of certificates representing shares of Company Common Stock MIDWEST Shares in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) hereof shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to such MIDWEST Shares. There shall be no further registration of transfers on the shares stock transfer books of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions either of this AgreementMIDWEST or MILLENNIUM of the MIDWEST Shares or MILLENNIUM Shares which were outstanding immediately prior to the Effective Time. If, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled Time, Certificates are presented to receive MILLENNIUM for any reason, they shall be canceled and exchanged as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, provided in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.this Article I.
(f) Any portion No fractional MILLENNIUM Shares shall be issued in the Merger, but in lieu thereof each holder of the Merger Consideration deposited with the Exchange Agent pursuant MIDWEST Shares otherwise entitled to this Section 2.10 (the "Exchange Fund") which remains undistributed a fractional MILLENNIUM Share shall, upon surrender of its, his or her Certificate or Certificates, be entitled to receive an additional share to round up to the holders nearest round number of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anyshares.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing of the Proxy StatementEffective Time, IHK Buyer shall appoint designate a commercial bank or trust company organized under the laws of the United States or any state of the United States with capital, surplus and undivided profits of at least $100 million to act as paying agent with respect to (i) the Company Merger Consideration and (ii) the Option and Warrant Consideration (the "Exchange Paying Agent") for the payment of the Merger Consideration). As of At or promptly after prior to the Effective Time, IHK Buyer shall deposit make available to the aggregate Paying Agent sufficient funds, and Buyer, Merger Consideration with Sub and the Exchange Company shall make available to the Paying Agent for the benefit of the holders a sufficient number of shares of Company Spinco Common Stock, for exchange including all of the shares of Spinco Common Stock acquired by Merger Sub in accordance with this Article II.
(b) the Spinco Stock Purchase, to pay the aggregate Company Merger Consideration and the aggregate Option and Warrant Consideration. Such shares of Spinco Common Stock delivered to the Paying Agent shall constitute all of the shares of Spinco Common Stock issued and outstanding at the Effective Time. No interest shall accrue or be paid on the cash or other consideration payable upon the surrender of any Certificates. As soon as practicable after the Effective Time, the Surviving Corporation will cause the Paying Agent to mail to each record holder of Certificates and each holder of an outstanding certificate or certificates Company Options and Company Warrants other than Buyer a form of letter of transmittal (which prior thereto represented shares will specify that delivery will be effected, and risk of Company Common Stock shall, upon surrender loss and title to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange AgentCertificates will pass, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates only upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records proper delivery of the Company or its transfer agent Certificates to the Paying Agent) and instructions for use in effecting the surrender of certificates the Certificates for payment.
(b) Upon the surrender of each Certificate representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfershall cause the Paying Agent to issue to the holder of such Certificate the product of the Company Merger Consideration and the number of shares represented by such Certificate, they and such Certificate shall forthwith be canceled against delivery canceled. Upon the surrender of cash and/or certificates for each Certificate representing shares of IHK Merger Sub Common Stock, the Surviving Corporation shall cause the Paying Agent to issue to the holder of such Certificate the product of Merger Sub Consideration and the number of shares represented by such Certificate, and such Certificate shall forthwith be canceled. Subject to execution of the Cancellation Agreements as provided in Section 3.1(c), the Surviving Corporation shall cause the Paying Agent to issue on or about the ninetieth day following the Effective Time, to each holder of Company Options or Company Warrants, the Option and Warrant Consideration applicable to such Company Option or Company Warrant, and such Company Option or Company Warrant shall forthwith be canceled. Until so surrendered and exchanged, each such Certificate, Company Option or Company Warrant that prior to the Effective Time represented shares of Merger Sub Common Stock, Company Common Stock or rights to acquire Company Common Stock, as the case may be, shall represent solely the right to receive the applicable Company Merger Consideration, Merger Sub Consideration or Option and Warrant Consideration, except as otherwise set forth in accordance with this Agreementthe last sentence of Section 3.1(c). If any certificate for such shares of IHK Common Stock payment is to be issued in, or if cash is made to be remitted to, a name person other than that the person in which whose name the certificate for shares of Company Common Stock Certificates surrendered for exchange is are registered, it shall be a condition of such exchange payment that the certificate Certificates so surrendered shall be properly endorsed, with signature guaranteed endorsed or otherwise in proper form for transfer and that the person requesting such exchange the payment shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in payment to a name person other than that of the registered holder of the certificate surrendered, Certificates surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such the tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends Any funds or other distributions with respect to shares of IHK Spinco Common Stock with a record date delivered or made available to the Paying Agent pursuant to Section 3.3(a) and not exchanged for Certificates, Company Options or Company Warrants within one year after the Effective Time shall will be paid returned by the Paying Agent to the holder of any unsurrendered certificate for shares of Company Common Stock with respect Surviving Corporation, which thereafter will act as Paying Agent to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect Surviving Corporation, subject to the shares rights of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect holders of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to unsurrendered Certificates under this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK3.3, and any holders former stockholders of shares of the Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall previously exchanged their Certificates or holders of Company Options or Company Warrants who have not exchanged such Company Options or Company Warrants will thereafter be entitled to look only to IHK and only as general creditors thereof the Surviving Corporation for payment of their claim for cash or shares of IHK Common Stockthe consideration set forth in Section 3.1(b), if any.
(g) None of Merger Subwithout any interest, but will have no greater rights against the Company, IHK or the Exchange Agent shall Surviving Corporation than may be liable accorded to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any general creditors thereof under applicable abandoned property, escheat or similar law. If any certificates representing shares of Certificates, Company Common Stock Options or Company Warrants shall not have been surrendered immediately prior to the such date on which any Merger Consideration payment in respect of such certificate thereof would otherwise escheat to or become the property of any Government Authoritygovernmental unit or agency, any such Merger Consideration the payment in respect of such certificate Certificates, Company Options or Company Warrants shall, as such time and to the extent permitted required by applicable lawlaws, be transferred to and become the property of any such applicable governmental unit or agency, and Buyer and the Surviving Corporation, Corporation shall thereafter be free and clear of all claims or of interest of any person previously entitled thereto.
(hd) The Exchange Agent After the Effective Time, there shall invest be no transfers on the stock transfer books of the Surviving Corporation of any cash included in shares of Merger Sub Common Stock or Company Common Stock. If, after the Exchange FundEffective Time, Certificates formerly representing shares of Merger Sub Common Stock or Company Common Stock or Company Options or Company Warrants are presented to the Surviving Corporation, they shall be canceled and (subject to applicable abandoned property, escheat and similar laws) exchanged for the applicable Company Merger Consideration or Option and Warrant Consideration, as directed by IHK, on a daily basis, and to the extent provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank this Article III.
(e) No dividends or other financial institution having capital, surplus and undivided profits distributions declared or made after the Effective Time with respect to shares of at least $500,000,000. Any interest and other income resulting from such investments Surviving Corporation Common Stock shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments holder of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsany unsurrendered Certificate.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Gtech Corp)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of If the Merger Consideration. As is approved by the shareholders of or promptly after both IQB and the Effective TimeSubsidiary and the Board of Directors of JVWeb, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company IQB Common Stock shallmay, upon but is not required to, surrender to the Exchange Agent of such certificate or certificates to IQB along with such other documents as may be deemed necessary by IQB, the Surviving Corporation or JVWeb effectively to surrender and acceptances thereof by the Exchange Agent, be entitled to a exchange such certificate or certificates. From and after the Effective Time and until certificates representing shares of IQB Common Stock are surrendered for exchange or registration of transfer, all certificates that prior to the Effective Time of the Merger represented shares of IQB Common Stock shall be deemed for all purposes to represent and evidence the number of shares of JVWeb Common Stock into which they were so converted under the terms of Section 2.1(b) of this Agreement.
(b) After the Effective Time, whenever certificates that formerly represented IQB Common Stock are presented for exchange or registration of transfer, JVWeb shall cause to be issued in respect thereof certificates representing the number of full shares of IHK JVWeb Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of surrendered shares of Company IQB Common Stock previously represented by such certificate or certificates surrendered shall have been were so converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable under the terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent Section 2.1(b) of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate certificates for such shares of IHK JVWeb Common Stock is are to be issued in, delivered to or if cash is to be remitted to, in the name of a name person other than that the person in which the whose name a surrendered certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the surrendered certificate so surrendered shall be properly endorsed, with signature guaranteed endorsed or otherwise be in proper form for transfer and that the person requesting such exchange the transfer shall pay to the Surviving Corporation or its transfer agent any JVWeb all transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock change in a name other than that of the registered holder of the certificate surrendered, ownership or establish to the JVWeb's satisfaction of the Surviving Corporation or its transfer agent that such tax has taxes have been paid or is are not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall required to be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06paid.
(c) No dividends If any certificate formerly representing shares of IQB Common Stock shall have been lost, stolen, or destroyed, upon the making of an affidavit in form and substance satisfactory to JVWeb of that fact by the person claiming the certificate to be lost, stolen or destroyed and subject to such other conditions as JVWeb may reasonably impose, JVWeb shall issue in exchange for the lost, stolen or destroyed certificate a certificate representing the number of shares of JVWeb Common Stock into which the shares of IQB Common Stock represented by the lost, stolen, or destroyed certificate were so converted under the terms of Section 2.1(b) of this Agreement. When authorizing the issuance of the shares of JVWeb Common Stock in exchange therefor, JVWeb may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such a certificate to give JVWeb a bond or other distributions with respect indemnity in any amount reasonably satisfactory to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of JVWeb against any unsurrendered certificate for shares of Company Common Stock claim arising against JVWeb with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends stolen or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stockdestroyed certificate.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company JVWeb Common Stock in accordance with the terms of into which IQB Common Stock shall have been converted pursuant to this Article II (including any cash paid pursuant to Section 2.10(e)) 2 shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the such converted shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreementand shall, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent when issued pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall provisions hereof, be delivered to IHKvalidly issued, fully paid, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if anynonassessable.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Berg Clyde J)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK each holder of an outstanding certificate representing shares of Avanex-California Common Stock may, at such stockholder"s option, surrender the same for cancellation to such institution as Avanex-Delaware shall appoint a bank or trust company at the time to act as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation"s Common Stock received into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Avanex-California Common shall be deemed for all purposes to represent the number of whole shares of the Surviving Corporation"s Common Stock Consideration into which such shares of Avanex-California Common were converted in the Merger. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of Common Stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing Common Stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Avanex-California so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK the Surviving Corporation"s Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Avanex Corp)
Exchange of Certificates. (a) Prior to the mailing of the Proxy Statement, IHK Helix shall appoint a bank authorize one or trust company more persons to act as paying agent Exchange Agent hereunder (the "Exchange Agent") for the payment of the Merger Consideration). As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to Helix shall cause the Exchange Agent to mail to all former holders of such certificate or record of GPC Stock instructions for surrendering their certificates and acceptances thereof by the Exchange Agent, be entitled to representing GPC Stock in exchange for a certificate or certificates representing shares of Helix Common Stock. Provided that the holder of GPC Stock has executed a Stockholder Letter (as defined below), upon surrender of a GPC Stock certificate for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by Helix, the holder of such certificate shall be entitled to receive in exchange therefor (subject to the escrow deposit required by Section 1.11) a certificate representing that number of full whole shares of IHK Helix Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the number of shares of Company Common GPC Stock previously theretofore represented by such the certificate or certificates so surrendered shall have been converted pursuant to the provisions of this Agreement, and the certificate so surrendered shall forthwith be canceled. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof Until surrendered in accordance with normal exchange practicesthe provisions of this Section 1.8, each GPC Stock certificate (other than each certificate for shares to be canceled in accordance with Section 1.6(a)(ii) and each certificate for Dissenting Shares, if any) shall represent for all purposes shares of Helix Common Stock. After Helix Common Stock into which GPC Stock shall be converted in the Merger shall be deemed to have been issued at the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Helix Common Stock is certificates are to be issued in, or if cash is to be remitted to, in a name other than that in which the GPC Stock certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall deliver to the Exchange Agent all documents necessary to evidence and effect such transfer and shall pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Helix Common Stock in a such different name other than that of the registered holder of the certificate surrendered, or unless such person can establish to the satisfaction of the Surviving Corporation or its transfer agent Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), Signatures on each certificate for shares letter of Company Common Stock transmittal effecting a transfer shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06guaranteed.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior The parties to this Agreement agree: (i) that Equiniti Trust Company, LLC shall serve, pursuant to the mailing terms of an exchange agent agreement, as the Proxy Statement, IHK shall appoint a bank or trust company to act as paying exchange agent for purposes of this Agreement (the "“Exchange Agent"”) and (ii) to execute and deliver the exchange agent agreement at or prior to the Effective Time. Acquiror shall be solely responsible for the payment of any fees and expenses of the Merger Consideration. As of Exchange Agent.
(b) At or promptly after prior to the Effective Time, IHK Acquiror shall deposit authorize the aggregate Merger Consideration with issuance of and shall make available to the Exchange Agent Agent, for the benefit of the holders of shares of Company Common Stock, Stock for exchange in accordance with this Article II.
ARTICLE 2: (bi) As soon as practicable the aggregate number of shares of Acquiror Common Stock deliverable pursuant to Section 2.1 and (ii) sufficient cash for payment of cash in lieu of fractional shares of Acquiror Common Stock pursuant to Section 2.4. Such amount of cash and shares of Acquiror Common Stock, together with any dividends or distributions with respect thereto paid after the Effective Time, are referred to in this ARTICLE 2 as the “Conversion Fund”.
(c) Within two (2) Business Days after the Closing Date, Acquiror shall cause the Exchange Agent to mail to each holder of an outstanding certificate record of one or more certificates which prior thereto represented representing shares of Company Common Stock shall(“Company Stock Certificates”) a letter of transmittal (“Letter of Transmittal”), in a form to be agreed by the parties, which specifies, among other things, that delivery shall be effected, and risk of loss and title to Company Stock Certificates shall pass, only upon surrender to the Exchange Agent delivery of such certificate or certificates and acceptances thereof by to the Exchange Agent, together with instructions for use in effecting the proper surrender of Company Stock Certificates pursuant to this Agreement.
(d) Upon proper surrender of a Company Stock Certificate for exchange to the Exchange Agent, together with a properly completed and duly executed Letter of Transmittal, the holder of such Company Stock Certificate shall be entitled to a certificate receive in exchange therefor his, her or certificates representing the number its Per Share Merger Consideration, plus cash in lieu of full any fractional shares of IHK Acquiror Common Stock received as Stock Consideration and in accordance with Section 2.4, deliverable in respect of the Cash Consideration, if any, into which the number of shares of Company Common Stock previously represented by such certificate Company Stock Certificate; thereupon, such Company Stock Certificate shall be marked or certificates surrendered shall have been converted pursuant to this Agreementrecorded as cancelled. The Exchange Agent shall accept such certificates No interest will be paid or accrued on any portion of the Per Share Merger Consideration deliverable upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. surrender of a Company Stock Certificate.
(e) After the Effective Time, there shall be no further transfer transfers on the records stock transfer books of the Company or its transfer agent of certificates representing shares of Outstanding Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Shares.
(cf) No dividends or other distributions declared with respect to shares of IHK Acquiror Common Stock with a and payable to the holders of record date thereof after the Effective Time shall be paid to the holder of any unsurrendered certificate for Company Stock Certificate until the holder thereof shall properly surrender such Company Stock Certificate in accordance with this ARTICLE 2. Promptly after the surrender of a Company Stock Certificate in accordance with this ARTICLE 2, the record holder thereof shall be entitled to receive any such dividends or other distributions, without interest thereon, which theretofore had become payable with respect to shares of Acquiror Common Stock into which the shares of Company Common Stock represented by such Company Stock Certificate were converted at the Effective Time pursuant to Section 2.1. No holder of an unsurrendered Company Stock Certificate shall be entitled, until the proper surrender of such Company Stock Certificate, to vote the shares of Acquiror Common Stock into which such holder’s Company Common Stock shall have been converted. After the proper surrender of a Company Stock Certificate in accordance with this ARTICLE 2, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which became payable following the Effective Time with respect to the whole shares of IHK Acquiror Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until which the surrender of the certificate for shares of Company Common Stock with respect represented by such Company Stock Certificate have been converted into the right to receive.
(g) Any portion of the shares Conversion Fund that remains unclaimed by the stockholders of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these Company twelve (12) months after the Effective Time shall be paid to the holder Surviving Entity, or its successors in interest. Any stockholders of the certificate representing whole shares Company who have not theretofore complied with this ARTICLE 2 shall thereafter look only to the Surviving Entity, or its successors in interest, for issuance and payment of IHK Common Stock issued in connection therewith, without interest the Per Share Merger Consideration (i) at including the time payment of such surrender the amount of any cash payable in lieu of any fractional shares to which deliverable in respect of such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing stockholders’ shares of Company Common Stock in accordance with Section 2.4), as well as any accrued and unpaid dividends or distributions on shares of such Acquiror Common Stock. Notwithstanding the terms foregoing, none of this Article II (including the Surviving Entity, the Exchange Agent or any cash paid pursuant to Section 2.10(e)) other Person shall be deemed liable to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each former holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock for any amount delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered good faith to a public office official pursuant to any applicable abandoned property, escheat or similar law. If laws.
(h) In the event that any certificates representing Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit with indemnity of that fact by the Person claiming such Company Stock Certificate to be lost, stolen or destroyed in a form acceptable to the Exchange Agent and, if required by the Exchange Agent, the posting by such Person of a bond in such amount as the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Company Stock Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Company Stock Certificate, and in accordance with this ARTICLE 2, the Per Share Merger Consideration (including cash in lieu of any fractional shares deliverable in respect of such stockholders’ shares of Company Common Stock shall not have been surrendered immediately prior to the date in accordance with Section 2.4, as well as any accrued and unpaid dividends or distributions on which any Merger Consideration in respect shares of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoAcquiror Common Stock).
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (HMN Financial Inc)
Exchange of Certificates. 11 of 122
(a) Prior At or prior to the mailing Effective Time, Paging Partners shall contribute to Newco, and Newco shall deposit with an exchange agent to be selected by the parties hereto prior to the Effective Time (which may be Paging Partners or one of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent its affiliates) (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of 8,892,076 shares of Company Paging Partners Common Stock, for exchange Stock (subject to adjustment in accordance with this Article IIthe event that the Conversion Number is adjusted pursuant to Section 1.8(e) hereof).
(b) As soon as practicable after After the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a certificate or certificates representing that immediately prior to the number of full Effective Time represented issued and outstanding shares of IHK BAP Common Stock received as Stock Consideration (other than Dissenting Shares and the Cash Consideration, if any, into which the number of other than shares of Company BAP Common Stock previously represented that are held by such certificate Paging Partners, Newco or certificates surrendered any other wholly owned subsidiary of Paging Partners or are held in the treasury of BAP) (the "Certificates") shall have been converted pursuant surrender the same to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practicesAgent. After the Effective Time, there shall be no further transfer on upon receipt by the records Exchange Agent of (i) the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise Certificates duly endorsed in proper form for transfer and (ii) the federal taxpayer identification number of each holder of Certificates, the Exchange Agent shall issue, to each former holder of BAP Common Stock (other than Dissenting Shares and other than shares of BAP Common Stock that are held by Paging Partners, Newco or any other wholly owned subsidiary of Paging Partners or are held in the person requesting treasury of BAP), a certificate representing the number of shares of Paging Partners Common Stock that such exchange holder is entitled to receive pursuant to Section 1.8 hereof. Pending such surrender and exchange, each Certificate shall pay be deemed for all corporate purposes to evidence the Surviving Corporation or its transfer agent any transfer or other taxes required by reason number of the issuance whole shares of certificates for Paging Partners Common Stock into which such shares of IHK BAP Common Stock in a name other than that of evidenced by such Certificate shall have been so converted by the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicableMerger. Until surrendered as contemplated by this Section 2.10(b), each certificate All certificates for shares of Company Paging Partners Common Stock to be issued in the Merger 12 of 122 shall be deemed at any time after issued in the Effective Time of same name in which the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Certificate surrendered in exchange therefore is registered.
(c) No dividends holder of a Certificate shall be entitled to receive any dividend or other distributions with distribution from Paging Partners in respect to shares of IHK the Paging Partners Common Stock with a record date after to be issued in respect thereof until the Effective Time surrender of such Certificate. Upon such surrender, there shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after (without interest) that theretofore became payable but that were not paid by reason of the Effective Time theretofore paid foregoing, with respect to such the number of shares of IHK Paging Partners Common Stock, and (ii) at Stock represented by the appropriate payment date, the proportionate amount of dividends or other distributions with a record date after the Effective Time but prior to certificates issued upon such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of IHK Common Stocksurrender.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including At any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock time following one year after the Effective Time who would otherwise have been Time, the Surviving Corporation shall be entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with require the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed deliver to the Surviving Corporation any shares of Paging Partners Common Stock that had been deposited with to the Exchange Agent by or on behalf of Paging Partners, Newco or the Surviving Corporation and have not been disbursed to holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any Certificates. Any holders of shares of Company Common Stock prior to the Effective Time Certificates who have not theretofore complied with this Article II Section 1.10(b) hereof shall thereafter look (subject to applicable escheat and other similar laws) only to IHK and only as general creditors thereof the Surviving Corporation for payment of their claim for cash or shares of IHK Common Stockthe Merger Consideration, if any.
(g) None of Merger Subwithout any interest thereon, and shall have no greater rights against the Company, IHK or the Exchange Agent shall Surviving Corporation than may be liable accorded to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property general creditors of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretoCorporation under Delaware law.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior From and after the Effective Time, all Company Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate representing shares of Company Common Stock shall cease to have any rights with respect thereto, except the right to receive in exchange therefor (subject to the mailing provisions of the Proxy StatementEscrow Agreement), IHK shall appoint a bank upon surrender thereof to American Stock Transfer & Trust Company or trust company to act as paying such other agent designated by Parent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to a -------------- certificate or certificates representing the number of full whole shares of IHK Parent Common Stock received as Stock Consideration and the Cash Considerationto which such holder is entitled pursuant to Section 3.2.
(b) Notwithstanding any other provision of this Agreement, if any, into which the number (i) until holders or transferees of certificates theretofore representing shares of Company Common Stock previously have surrendered them for exchange as provided herein, no dividends shall be paid with respect to any Parent Common Stock represented by such certificate or certificates surrendered shall have been converted pursuant certificates, and (ii) without regard to this Agreement. The Exchange Agent shall accept when such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock are surrendered for exchange as provided herein, no interest shall be paid on any Parent Common Stock dividends (including the Escrow Securities (as defined in Section 3.3)). Upon surrender of a certificate which immediately prior to the Effective Time represented shares of Company Common Stock, and if such certificates are presented there shall be paid to the Surviving Corporation holder of such certificate the amount of any dividends which theretofore became payable since Closing, but which were not paid by reason of the foregoing, with respect to the number of whole shares of Parent Common Stock represented by the certificate or certificates issued upon such surrender.
(c) Notwithstanding any other provision of this Agreement, no certificates or scrip for transfer, they fractional shares of Parent Common stock shall be canceled against delivery of cash and/or certificates for shares of IHK issued in the Merger and no Parent Common Stock in accordance with this Agreementdividend, stock split or interest rate shall relate to any fractional security, and such fractional interests shall not entitle the owner thereof to vote or to any other rights of a security holder. The aggregate number of shares being issued to each holder of Company Common Stock shall be rounded down to the nearest whole number.
(d) If any certificate for such shares of IHK Parent Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay have paid to the Surviving Corporation Parent or its transfer agent any applicable transfer or other taxes required by reason of such issuance; provided that, any such transfer shall require the issuance prior written consent of Parent.
(e) Promptly after the Effective Time, Parent shall make available to the Exchange Agent the certificates for such representing shares of IHK Parent Common Stock required to effect the exchanges referred to in a name other than that of paragraph (a) above.
(f) Promptly after the registered Effective Time, the Exchange Agent shall mail to each holder of the record of a certificate surrendered, or establish certificates that immediately prior to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for Effective Time represented outstanding shares of Company Common Stock shall be deemed at any time after (the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c"Company Certificates") No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at a letter of transmittal (which shall specify -------------------- that delivery shall be effected, and risk of loss and title to the time Company Certificates shall pass, only upon actual delivery of such surrender the amount of any cash payable in lieu of fractional shares Company Certificates to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common StockExchange Agent), and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon instructions for use in effecting the surrender of the Company Certificates in exchange for exchange of certificates representing shares of Parent Common Stock. Upon surrender of Company Certificates for cancellation to the Exchange Agent, together with a duly executed letter of transmittal and such other documents as the Exchange Agent shall reasonably require, the holder of such Company Certificates shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to into which the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other the Company Certificates so surrendered shall have been converted pursuant to the provisions of this AgreementSection 3.2, each less the number of shares of Parent Common Stock of such holder deposited with the Escrow Agent, and the Company Certificates so surrendered shall be cancelled. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to a holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Parent Common Stock from the Exchange Fund or dividends or distributions thereon delivered to a public office official pursuant to any applicable abandoned property, escheat or similar law. If any laws.
(g) Promptly following the date which is nine months after the Effective Time, the Exchange Agent shall deliver to Parent all certificates (including certificates representing shares of any Parent Common Stock), property and other documents in its possession relating to the transactions described in this Agreement, and the Exchange Agent's duties shall terminate. Thereafter, each holder of a Company Certificate may surrender such Company Certificate to Parent and (subject to applicable abandoned property, escheat and similar laws) receive in exchange therefor the Parent Common Stock to which such person is entitled, without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, Parent, Subsidiary or the Surviving Corporation shall be liable to a holder of Company Common Stock shall not have been surrendered immediately prior for any Parent Common Stock delivered to the date on which any Merger Consideration in respect of such certificate would otherwise a public official pursuant to applicable abandoned property, escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled theretosimilar laws.
(h) The Exchange Agent In the event any Company Certificate shall invest any cash included in have been lost, stolen or destroyed, upon the Exchange Fund, as directed by IHK, on a daily basis, provided making of an affidavit of that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest fact by the United States person claiming such Company Certificate to be lost, stolen or destroyed, the Surviving Corporation shall issue in exchange for such lost, stolen or destroyed Company Certificate the Parent Common Stock deliverable in respect thereof determined in accordance with this Section 3.4. When authorizing such payment in exchange therefor, the Board of AmericaDirectors of Parent may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed Company Certificate to give Parent such indemnity as it may reasonably direct as protection against any of which claim that may be made through a repurchase agreement in commercially reasonable form with any bank against Parent or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses Surviving Corporation with respect to such investmentsthe Company Certificate alleged to have been lost, stolen or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such paymentsdestroyed.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (C Cor Net Corp)
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented representing shares of Company Common Stock shallor Preferred Stock of ANSYS-California may be asked to surrender the same for cancellation to an exchange agent, upon surrender whose name will be delivered to holders prior to any requested exchange (the Exchange Agent of "EXCHANGE AGENT"), and each such certificate or certificates and acceptances thereof by the Exchange Agent, holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's Common Stock received as or Preferred Stock Consideration and the Cash Consideration, if any, into which the surrendered shares were converted as herein provided. Until so surrendered, each outstanding certificate theretofore representing shares of Common Stock or Preferred Stock of ANSYS-California shall be deemed for all purposes to represent the number of shares of Company the Surviving Corporation's Common Stock previously represented by or Preferred Stock, as the case may be, into which such shares of Common Stock or Preferred Stock of ANSYS-California were converted in the Merger. The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any such outstanding certificate shall, until such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate so surrendered shall be properly endorsed, with signature guaranteed transfer or conversion or otherwise in proper form accounted for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent the Exchange Agent, have and be entitled to exercise any transfer or voting and other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrenderedrights with respect to, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right and to receive upon such surrender the Merger Consideration as contemplated by Section 2.06.
(c) No dividends or and other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to upon, the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common or Preferred Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear as the case may be, represented by such outstanding certificate as provided above. Each certificate representing Common Stock or Preferred Stock of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included the Surviving Corporation issued in the Exchange FundMerger shall bear the same legends, as directed by IHKif any, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investmentsthe restrictions on transferability as the certificates of ANSYS-California so converted and given in exchange therefore, or unless otherwise determined by the Exchange Fund diminishes for other reasons below the level required to make prompt payments Board of Directors of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.Surviving
Appears in 1 contract
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank or trust company each holder of an outstanding certificate representing Panache Common Stock (excluding holders of certificates who perfect their dissenters' rights of appraisal as provided in Section 3.3 of this Agreement) may, at such holder's option, surrender the same for cancellation to act such entity as paying the Surviving Corporation so designates as exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Merger Consideration. Until so surrendered, each outstanding certificate theretofore representing Panache Common Stock received as Stock shall be deemed for all purposes to represent the Merger Consideration and the Cash Considerationassociated rights.
(b) The registered owners of Panache Common Stock on the books and records of Panache immediately prior to the Effective Date of the Merger (excluding registered owners who perfect their dissenters' rights of appraisal as provided in Section 3.3 of this Agreement) shall be the registered owners of Company Common Stock on the books and records of Company immediately after the Effective Date of the Merger, if anyand the holders of shares of Panache Common Stock, into which until such certificates shall have been surrendered for transfer or conversion or otherwise accounted for by the number of Surviving Corporation, shall be entitled to exercise any voting and other rights with respect to, and receive dividends and other distributions upon, the shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted that the holders of Panache Common Stock would be entitled to receive pursuant to this Agreement. The Exchange Agent the Merger.
(c) Each certificate representing Company Common Stock so issued in the Merger shall accept such bear the same legends, if any, with respect to the restrictions on transfer that appeared on the certificates upon representing Panache Common Stock so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of the Company or its transfer agent of certificates applicable laws.
(d) If any certificate representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, in a name other than that the name in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall the following conditions must be a condition of such exchange that satisfied before the issuance thereof: (i) the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer; (ii) such transfer shall otherwise be proper; and that (iii) the person requesting such exchange transfer shall pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that the name of the registered holder of the certificate surrendered, surrendered or shall establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to After the mailing Effective Date of the Proxy StatementMerger, IHK shall appoint a bank each holder of an outstanding certificate representing shares of Hibshman Common Stock may, at such shareholder's option, surrender th▇ ▇▇▇▇ ▇or trust company cancellation to act Olde Monmouth Stock Transfer Co., Inc., as paying exchange agent (the "Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK and each such holder shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective Time, each holder of an outstanding certificate or certificates which prior thereto represented shares of Company Common Stock shall, upon surrender to the Exchange Agent of such certificate or certificates and acceptances thereof by the Exchange Agent, be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK the Surviving Corporation's common stock into which the surrendered shares were converted as set forth in Article III Section 1 above. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Hibshman Common Stock received shall be deemed for all purposes to represent t▇▇ ▇▇▇▇▇r of shares of the Surviving Corporation's Common Stock into which such shares of Hibshman Common Stock were converted in the Merger as Stock Consideration set forth in Ar▇▇▇▇▇ ▇▇I Section 1 above. The registered owner on the books and records of the Cash ConsiderationSurviving Corporation or the Exchange Agent of any shares of stock represented by such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Hibshman so converted and given in exchange thereof in accordance with normal exchange practices. After therefore, unless otherwi▇▇ ▇▇▇▇▇mined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transferin compliance with applicable laws, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreementor other such additional legends as agreed upon by the holder and the Surviving Corporation. If any certificate for such shares of IHK Common Stock Surviving Corporation common stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and comply with applicable securities laws and that the person requesting such exchange shall transfer pay to Somanta or the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish established to the satisfaction of the Surviving Corporation or its transfer agent Somanta that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior to the mailing Each outstanding certificate theretofore representing shares of the Proxy Statement, IHK shall appoint a bank or trust company to act as paying agent Lighten Up common stock that are not Dissenting Shares (the "Exchange AgentNON-DISSENTING SHARES") shall be deemed for all purposes to represent the payment number of whole shares of the Bionovo common stock into which such Non-Dissenting Shares of Lighten Up common stock were converted in the Merger Considerationand the holder thereof shall not be required to surrender such certificate for a certificate issued by Bionovo. As of or promptly However, after the Effective Time, IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit Date of the holders of shares of Company Common Stock, for exchange in accordance with this Article II.
(b) As soon as practicable after the Effective TimeMerger, each holder of an outstanding certificate or certificates which prior thereto represented shares representing Non-Dissenting Shares of Company Common Stock shallLighten Up common stock may, upon at such stockholder's option and sole discretion, surrender the same for cancellation to Interwest Transfer Co., Inc., as the Exchange Agent sole stock transfer and registrar of the Lighten Up common stock and as exchange agent therefor (the "EXCHANGE AGENT"), and each such certificate or certificates and acceptances thereof by the Exchange Agent, holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of full shares of IHK Common Stock received the Bionovo common stock into which the surrendered shares were converted as Stock Consideration herein provided. The registered owner on the books and records of Bionovo or the Cash ConsiderationExchange Agent of any such outstanding certificate representing Non-Dissenting Shares of Lighten Up common stock shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of common stock of the Surviving Corporation represented by such outstanding certificate as provided above. Each certificate representing common stock of the Surviving Corporation so issued in the Merger shall bear the same legends, if any, into which with respect to the number of shares of Company Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions restrictions on transferability as the Exchange Agent may impose to effect an orderly certificates of Lighten Up so converted and given in exchange thereof in accordance with normal exchange practices. After therefor, unless otherwise determined by the Effective Time, there shall be no further transfer on the records Board of the Company or its transfer agent Directors of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance compliance with this Agreementapplicable laws. If any certificate for such shares of IHK Common Stock Bionovo stock is to be issued in, or if cash is to be remitted to, in a name other than that in which the certificate for shares of Company Common Stock surrendered for in exchange therefor is registered, it shall be a condition of such exchange issuance thereof that the certificate so surrendered shall be properly endorsed, with signature guaranteed or endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such exchange shall transfer pay to the Surviving Corporation or its transfer agent Exchange Agent any transfer or other taxes required payable by reason of the issuance of certificates for such shares of IHK Common Stock new certificate in a name other than that of the registered holder of the certificate surrendered, surrendered or establish to the satisfaction of the Surviving Corporation or its transfer agent Bionovo that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06payable.
(c) No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding any other provisions of this Agreement, each holder of shares of Company Common Stock after the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Sources: Merger Agreement (Lighten Up Enterprises International Inc)
Exchange of Certificates. (a) Prior At or prior to the mailing of the Proxy StatementEffective Time, IHK Parent shall appoint a deposit with Parent’s transfer agent or another bank or trust company designated by Parent and reasonably acceptable to act as paying agent the Company (the "“Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time”), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders of Company Stock Certificates, certificates representing the shares of Parent Common Stock issuable pursuant to Section 1.6(a)(iii) in exchange for outstanding shares of Company Common Stock (the shares of Parent Common Stock, 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”). At or prior to the Effective Time, Parent shall also deposit with the Exchange Agent, for exchange the benefit of holders of Company Stock Certificates, cash in accordance with this Article IIan amount sufficient to make payments for fractional shares required pursuant to Section 1.9(b).
(b) As soon as practicable after the Effective Time, Parent shall cause the Exchange Agent to send to each registered holder of an outstanding certificate or certificates a Company Stock Certificate a letter of transmittal (which prior thereto represented shares shall be in customary form and contain such provisions as Parent may reasonably specify) and instructions for use in effecting the surrender of Company Common Stock shall, upon Certificates in exchange for the Merger Consideration. Upon surrender of a Company Stock Certificate to the Exchange Agent for exchange, together with a duly executed letter of transmittal and such certificate or certificates and acceptances thereof other documents as may be reasonably required by the Exchange Agent, be entitled the Exchange Agent shall deliver to the holder of such Company Stock Certificate a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the that number of shares of Company Parent Common Stock previously represented that such holder has the right to receive pursuant to Section 1.6(a)(iii); provided, however, that the certificates representing Parent Common Stock to be delivered to the holder of a Company Stock Certificate shall represent only whole shares of Parent Common Stock. In lieu of any fractional shares to which such holder would otherwise be entitled, after combining any fractional interests of such holder into as many whole shares as is possible, the holder of such Company Stock Certificate shall be paid in cash an amount equal to the dollar amount (rounded to the nearest whole cent) determined by multiplying the Parent Average Trading Price by the fraction of a share of Parent Common Stock that would otherwise be deliverable to such certificate or certificates holder.
(c) All Company Stock Certificates surrendered shall have been converted pursuant to this AgreementSection 1.9 shall be canceled. The Exchange Agent Until surrendered as contemplated by this Section 1.9, each Company Stock Certificate shall accept such certificates upon compliance with such reasonable terms be deemed, from and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After after the Effective Time, there shall be no further transfer on to represent only the records of right to receive the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock Merger Consideration in accordance with this Agreement. If any Company Stock Certificate shall have been lost, stolen or destroyed, Parent may, in its discretion and as a condition precedent to the issuance of any certificate for such shares of IHK representing Parent Common Stock is to be issued inor the payment of cash in lieu of fractional shares, or if cash is to be remitted to, a name other than that in which require the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition owner of such exchange lost, stolen or destroyed Company Stock Certificate to provide an affidavit and indemnity in form satisfactory to Parent against any claim that the certificate so surrendered shall may be properly endorsed, with signature guaranteed made against Parent or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for with respect to such shares of IHK Common Company Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 2.10(b), each certificate for shares of Company Common Stock shall be deemed at any time after the Effective Time of the Merger to represent only the right to receive upon such surrender the Merger Consideration as contemplated by Section 2.06Certificate.
(cd) No dividends or other distributions declared or made with respect to shares of IHK Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered certificate for shares of Company Common Stock Certificate with respect to the shares of IHK Parent Common Stock represented thereby thereby, and no cash payment in lieu of any fractional shares of IHK Common Stock share shall be paid to any such holder, until such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of surrenders such Company Common Stock with respect to the shares of IHK Common Stock represented thereby Certificate in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any Section 1.9 (at which time such certificates, these holder shall be paid entitled to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of receive all such surrender the amount of any dividends and distributions and such cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Stock, and (ii) at the appropriate payment date, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(epayment)) shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the shares of Company Common Stock exchanged for cash theretofore represented by such certificates.
(e) Notwithstanding Each of Parent, the Surviving Corporation and the Exchange Agent shall be entitled to deduct and withhold from any other provisions consideration payable or otherwise deliverable pursuant to this Agreement such amounts as it reasonably determines that it is required to deduct or withhold therefrom under the Code or under any provision of this Agreementstate, each holder of shares local or foreign tax law and to collect Forms W-8 or W-9, as applicable, or similar information from the holders of Company Common Stock after and any other recipients of payments hereunder. To the Effective Time who extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Considerationpaid.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") Fund which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months one (1) year after the Effective Time shall be delivered to IHKParent, upon demand, and any holders of shares holder of Company Common Stock prior to the Effective Time who have has not theretofore previously complied with this Article II Section 1.9 shall thereafter look only to IHK and only Parent, as a general creditors thereof unsecured creditor, for payment of their its claim for cash or shares of IHK Parent Common Stock, if anyany cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with respect to shares of Parent Common Stock.
(g) None of Merger Sub, Neither Parent nor the Company, IHK or the Exchange Agent Surviving Corporation shall be liable to any person in respect holder or former holder of any cash or capital stock of the Company for any shares of IHK Parent Common Stock from the Exchange Fund (or dividends or distributions with respect thereto), or for any cash amounts, delivered to a any public office official pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock Certificate shall not have been surrendered prior to one year after the Effective Time (or immediately prior to the such earlier date on which any Merger Consideration in respect shares of Parent Common Stock and any cash payable to the holder of such certificate Company Stock Certificate or any dividends or distributions payable to the holder of such Company Stock Certificate pursuant to this Section 1.9 would otherwise escheat to or become the property of any Government AuthorityGovernmental Body), any such Merger Consideration shares of Parent Common Stock, or cash, dividends or distributions in respect of such certificate Company Stock Certificate, shall, as such time and to the extent permitted by applicable lawLaw, become the property of the Surviving CorporationParent, free and clear of all claims or interest of any person Person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.
(i) The Company shall pay all charges and expenses of the Exchange Agent.
Appears in 1 contract
Exchange of Certificates. (a) Prior Immediately prior to the mailing of the Proxy StatementClosing, IHK Parent shall appoint a bank deposit, or trust company shall cause to act as paying agent be deposited, with ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP (the "“Exchange Agent") for the payment of the Merger Consideration. As of or promptly after the Effective Time), IHK shall deposit the aggregate Merger Consideration with the Exchange Agent for the benefit of the holders Company Stockholders certificates in the names of the individuals and entities set forth on Exhibit A evidencing such number of whole shares of Company Parent Common Stock or Parent Preferred Stock, for exchange as the case may be, set forth next to such Stockholders’ name on Exhibit A to be exchanged in accordance with this Article II.
(b) . As soon as reasonably practicable after the Effective Time, Parent will instruct the Exchange Agent to mail to each holder of an outstanding record of a certificate or certificates which which, immediately prior thereto represented shares of to the Effective Time evidenced outstanding Company Common Stock shallor Company Preferred Stock, upon as the case may be, (collectively, the “Company Certificates”) other than Dissenting Shares (if applicable), a letter of transmittal containing instructions for use in effecting the surrender of such Company Certificates to the Exchange Agent of such certificate or in exchange for certificates and acceptances thereof by evidencing the Exchange Agent, be entitled to a certificate or certificates representing the number of full shares of IHK Common Stock received as Stock Consideration and the Cash Consideration, if any, into which the relevant number of shares of Company Parent Common Stock previously represented by such certificate or certificates surrendered shall have been converted pursuant to this Agreement. The Exchange Agent shall accept such certificates upon compliance with such reasonable terms and conditions Parent Preferred Stock, as the Exchange Agent case may impose be. Upon due surrender of such Company Certificates, each such Company Stockholder will be entitled to effect an orderly exchange thereof in accordance with normal exchange practices. After receive certificates evidencing a number of shares of Parent Common Stock or Parent Preferred Stock, as the Effective Timecase may be, there shall be no further transfer set forth opposite such Company Stockholder’s name on Exhibit A, (the records of “Merger Consideration”), and the Company or its transfer agent of certificates representing shares of Company Common Stock, and if such certificates are presented to the Surviving Corporation for transfer, they shall be canceled against delivery of cash and/or certificates for shares of IHK Common Stock in accordance with this Agreement. If any certificate for such shares of IHK Common Stock is to be issued in, or if cash is to be remitted to, a name other than that in which the certificate for shares of Company Common Stock surrendered for exchange is registered, it shall be a condition of such exchange that the certificate Certificate so surrendered shall be properly endorsed, with signature guaranteed or otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Surviving Corporation or its transfer agent any transfer or other taxes required by reason of the issuance of certificates for such shares of IHK Common Stock in a name other than that of the registered holder of the certificate surrendered, or establish to the satisfaction of the Surviving Corporation or its transfer agent that such tax has been paid or is not applicableforthwith cancelled. Until surrendered as contemplated by this Section 2.10(b)2.2, each certificate for shares of Company Certificate evidencing Company Common Stock or Company Preferred Stock shall be deemed at any time after the Effective Time of the Merger to represent evidence only the right to receive receive, upon such surrender surrender, the Merger Consideration as contemplated by Section 2.06.
(c) Consideration. No dividends or other distributions with respect to shares of IHK Common Stock with a record date after the Effective Time interest shall be paid to on the holder Merger Consideration. All shares of any unsurrendered certificate for Parent Common Stock and Parent Preferred Stock issued upon exchange of the shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby and no cash payment in lieu of fractional shares of IHK Common Stock shall be paid to any such holder pursuant to Section 2.10(e) until the surrender of the certificate for shares of Company Common Stock with respect to the shares of IHK Common Stock represented thereby in accordance with this Article II. Subject to the effect of applicable laws, following surrender of any such certificates, these shall be paid to the holder of the certificate representing whole shares of IHK Common Stock issued in connection therewith, without interest (i) at the time of such surrender the amount of any cash payable in lieu of fractional shares to which such holder is entitled pursuant to Section 2.10(e) and the proportionate amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of IHK Common Preferred Stock, and (ii) at as the appropriate payment datecase may be, the proportionate 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 IHK Common Stock.
(d) All cash paid upon the surrender for exchange of certificates representing shares of Company Common Stock in accordance with the terms of this Article II (including any cash paid pursuant to Section 2.10(e)) hereof shall be deemed to have been issued (and paid) or paid in full satisfaction of all rights pertaining to the such shares of Company Common Stock exchanged for cash theretofore represented by such certificatesor Company Preferred Stock, as the case may be.
(eb) Notwithstanding any other provisions of this Agreement, each holder of shares of Company It is understood that the certificates evidencing the Parent Common Stock after and Parent Preferred Stock will bear the Effective Time who would otherwise have been entitled to receive as Stock Consideration a fraction of a share of IHK Common Stock (after taking into account all shares of Company Common Stock delivered by such holder) shall receive, in lieu thereof, a cash payment (without interest) equal to such fraction multiplied by the Cash Consideration.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.10 (the "Exchange Fund") which remains undistributed to the holders of the certificates representing shares of Company Common Stock for six months after the Effective Time shall be delivered to IHK, and any holders of shares of Company Common Stock prior to the Effective Time who have not theretofore complied with this Article II shall thereafter look only to IHK and only as general creditors thereof for payment of their claim for cash or shares of IHK Common Stock, if any.
(g) None of Merger Sub, the Company, IHK or the Exchange Agent shall be liable to any person in respect of any cash or any shares of IHK Common Stock from the Exchange Fund delivered to a public office pursuant to any applicable abandoned property, escheat or similar law. If any certificates representing shares of Company Common Stock shall not have been surrendered immediately prior to the date on which any Merger Consideration in respect of such certificate would otherwise escheat to or become the property of any Government Authority, any such Merger Consideration in respect of such certificate shall, as such time and to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest of any person previously entitled thereto.
(h) The Exchange Agent shall invest any cash included in the Exchange Fund, as directed by IHK, on a daily basis, provided that such investments shall be in obligations of the United States of America or obligations fully guaranteed as to principal and interest by the United States of America, any of which may be made through a repurchase agreement in commercially reasonable form with any bank or other financial institution having capital, surplus and undivided profits of at least $500,000,000. Any interest and other income resulting from such investments shall be paid to IHK. To the extent that there are losses with respect to such investments, or the Exchange Fund diminishes for other reasons below the level required to make prompt payments of the Merger Consideration as contemplated hereby, IHK shall promptly replace or restore the portion of the Exchange Fund lost through investments or other events so as to ensure that the Exchange Fund is, at all times, maintained at a level sufficient to make such payments.legends set forth below:
(i) The Securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “Act”), or under the securities laws of any other jurisdictions. These securities are subject to restrictions on transferability and resale and may not be transferred or resold except as permitted under the Act and the applicable state securities laws, pursuant to registration or exemption therefrom. Investors should be aware that they may be required to bear the financial risks of this investment for an indefinite period of time. The issuer of these securities may require an opinion of counsel in form and substance satisfactory to the issuer to the effect that any proposed transfer or resale is in compliance with the Act and any applicable state securities laws.
(ii) Any legend required by the Amended and Restated Stockholders Agreement. The legend set forth in (i) above shall be removed by Parent from any certificate evidencing such Parent Common Stock or Parent Preferred Stock upon delivery to the Parent of an opinion by counsel, reasonably satisfactory to the Parent, that a registration statement under the 1933 Act is at that time in effect with respect to the legended security or that such security can be freely transferred without such a registration statement being in effect and that such transfer will not jeopardize the exemption or exemptions from registration pursuant to which the Company shall pay all charges and expenses of the Exchange Agentissued such Parent Common Stock or Parent Preferred Stock.
Appears in 1 contract