Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent. (ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. (iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 2 contracts
Sources: Merger Agreement (FNB Corp \Va\), Merger Agreement (Swva Bancshares Inc)
Exchange Procedures. (a) As soon as practicable following the Effective Time, but in no event later than 10 days thereafter, and continuing until the first anniversary of the Effective Time, M&T shall make available on a timely basis or cause to be made available to an exchange agent agreed upon by M&T and ▇▇▇▇▇▇ (the “Exchange Agent”) (i) Not more cash in an amount sufficient to allow the Exchange Agent to make all payments that may be required pursuant to this Article II and (ii) certificates, or at M&T’s option, evidence of shares in book entry form, representing the shares of M&T Common Stock (“New Certificates”), each to be given to the holders of ▇▇▇▇▇▇ Common Stock in exchange for Old Certificates pursuant to this Article II. Upon such anniversary, any such cash or New Certificates remaining in the possession of the Exchange Agent (together with any earnings in respect thereof) shall be delivered to M&T. Any holder of Old Certificates who has not theretofore exchanged his or her Old Certificates pursuant to this Article II shall thereafter be entitled to look exclusively to M&T, and only as a general creditor thereof, for the consideration to which he or she may be entitled upon exchange of such Old Certificates pursuant to this Article II. Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto shall be liable to any holder of Old Certificates for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(b) Promptly after the Effective Time, but in no event later than 45 ten days nor fewer than 30 days thereafter, M&T shall cause the Exchange Agent to mail or deliver to each person who was, immediately prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline")Time, a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA ▇▇▇▇▇▇ Common Stock were converted into the right to receive Merger Consideration and those who failed to return theretofore has not submitted such holder’s Old Certificates with an Election Form, a properly completed Form form of Election, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Old Certificates will shall pass, only upon proper delivery of the Certificates such certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) containing instructions for use in effecting the surrender of the Old Certificates in exchange for the Merger Consideration.
(iii) With respect consideration to properly made elections which such person may be entitled pursuant to this Article II. After completion of the allocation procedure set forth in accordance with Section 3.1(i), 2.3 and upon surrender in accordance with Section 3.1(ii) to the Exchange Agent of a an Old Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAtransmittal or Election Form, as the case may be, payment may duly executed and completed in accordance with the instructions thereto, the holder of such Old Certificate shall promptly be issued provided in exchange therefor, but in no event later than ten Business Days after due surrender, a New Certificate and/or a check in the amount to a person other than which such holder is entitled pursuant to this Article II, and the person in whose name the Old Certificate so surrendered shall forthwith be canceled. No interest will accrue or be paid with respect to any property to be delivered upon surrender of Old Certificates.
(c) If any cash payment is registered if to be made in a name other than that in which the Old Certificate surrendered in exchange therefor is registered, it shall be a condition of such Certificate is properly endorsed or otherwise in proper form for transfer and exchange that the person requesting such issuance pays exchange shall pay any transfer or other taxes required by reason of the making of such payment to of the Per Share Cash Consideration in a person name other than that of the registered holder of the Old Certificate surrendered, or required for any other reason relating to such Certificate holder or establishes requesting person, or shall establish to the reasonable satisfaction of FNB the Exchange Agent that such tax has been paid or is not applicablepayable. Until If any New Certificate representing shares of M&T Common Stock is to be issued in the name of other than the registered holder of the Old Certificate surrendered as contemplated in exchange therefor, it shall be a condition of the issuance thereof that the Old Certificate so surrendered shall be properly endorsed (or accompanied by this Section 3.1an appropriate instrument of transfer) and otherwise in proper form for transfer, each and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other taxes required by reason of the issuance of a certificate representing shares of M&T Common Stock in a name other than that of the registered holder of the Old Certificate will be deemed at surrendered, or required for any time other reason relating to such holder or requesting person, or shall establish to the reasonable satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(d) No dividends or other distributions with a record date after the Effective Date Time with respect to represent only M&T Common Stock shall be paid to the right to receive upon such surrender the Merger Consideration that holder of any unsurrendered Old Certificate until the holder thereof has shall surrender such Old Certificate in accordance with this Article II. After the right surrender of an Old 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 shares of M&T Common Stock represented by the New Certificate.
(e) At or after the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Company of Old Shares.
(f) If any Old Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Old Certificate to be lost, stolen or destroyed and, if required by M&T or the Exchange Agent, the posting by such person of a bond in such reasonable amount as M&T or the Exchange Agent may direct as indemnity against any claim that may be made against it with respect to such Old Certificate, M&T or the Exchange Agent shall, in exchange for such lost, stolen or destroyed Old Certificate, pay or cause to be paid the consideration deliverable in respect of the Old Shares formerly represented by such Old Certificate pursuant to this Article II.
(g) Notwithstanding any other provision of this Agreement, neither certificates nor scrip for fractional shares of M&T Common Stock shall be issued in the provisions Merger. Each holder who otherwise would have been entitled to a fraction of Article 2a share of M&T Common Stock shall receive in lieu thereof cash (without interest) in an amount determined by multiplying the fractional share interest to which such holder would otherwise be entitled (after taking into account all shares of ▇▇▇▇▇▇ Common Stock owned by such holder at the Effective Time) by the Closing Price. No interest will such holder shall be paid entitled to dividends, voting rights or will accrue on any cash payable to holders other rights in respect of Certificates pursuant to the provisions of Article 2any fractional share.
Appears in 2 contracts
Sources: Merger Agreement (Hudson City Bancorp Inc), Merger Agreement (M&t Bank Corp)
Exchange Procedures. Promptly (i) Not and in any event no more than 45 days nor fewer than 30 days prior to three Business Days) after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Surviving Corporation shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, instruct the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose certificate (or certificates) that immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock were converted into (the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, “Certificates”) (i) a form of a letter of transmittal (which will shall be in customary form and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will pass, shall pass only upon proper delivery of the Certificates Certificates, together with such letter(s) of transmittal properly completed and duly executed, to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With Consideration payable in respect to properly made elections in accordance with Section 3.1(i), and upon of the shares of Company Common Stock represented by such Certificates. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal, properly completed and duly executed, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that payable in respect of the shares of Company Common Stock represented by such holder has the right to receive pursuant to the provisions of Article 2, Certificate and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares shares of Company Common Stock that are is not registered in the transfer records of SWVAthe Company, as the case may be, payment Merger Consideration payable in respect of such shares of Company Common Stock may be issued paid to a person other than the person in whose name transferee if the Certificate so surrendered representing such shares of Company Common Stock is registered if presented to the Exchange Agent, accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays by evidence that any applicable transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has Taxes have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.13.2, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive receive, upon such surrender surrender, the Merger Consideration that the holder thereof has the right to receive payable in respect of the shares of Company Common Stock represented by such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Certificate.
Appears in 2 contracts
Sources: Merger Agreement (United Industrial Corp /De/), Merger Agreement (Textron Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime (and in any event not later than three (3) Business Days thereafter), the Exchange Agent will mail to each holder of record of a Certificate, Shares whose shares of SWVA Common Stock Shares were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.1(a), (ix) a letter of transmittal (which will specify that delivery will be effected, effected and risk of loss and title to the Certificates will pass, pass only upon delivery of the Certificates Book-Entry Shares to the Exchange Agent and will be in such form and have such other provisions as Parent and the Exchange Agent Company may specify consistent with this Agreement) mutually agree), and (iiy) instructions for use in effecting the surrender of the Certificates Book-Entry Shares in exchange for the Merger Consideration.
(iiiii) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation Book-Entry Shares to the Exchange Agent, Agent together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably customarily be required by the Exchange Agent, the holder of such Certificate Book-Entry Shares will be entitled to receive in exchange therefor for such properly surrendered Book-Entry Shares an amount in cash equal to the product of (x) the number of shares represented by such holder’s properly surrendered Book-Entry Shares and (y) the Merger Consideration that such holder has the right to receive pursuant to the provisions Consideration. No interest will be paid or accrued on any amount payable upon due surrender of Article 2, and the Certificate so surrendered will forthwith be canceledBook-Entry Shares. In the event of a transfer of ownership of Shares that are is not registered in the transfer records of SWVAthe Company, as the case may be, payment relevant Merger Consideration to be issued or paid upon due surrender of the Book-Entry Shares may be issued or paid to such a person other than the person in whose name the Certificate so surrendered is registered transferee if all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays to evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has Taxes have been paid or is are not applicableapplicable with respect to such Book-Entry Shares. Until surrendered as contemplated by Section 2.1(c) and this Section 3.12.2, each Certificate Book-Entry Share will be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender surrender, without interest, the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Consideration.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Exchange Procedures. (a) As promptly as reasonably practicable following the date of this Agreement, but in no event later than ten (10) Business Days prior to the Closing Date, the Purchaser, the Company and Pubco shall appoint Continental Stock Transfer & Trust Company, or another agent reasonably acceptable to the Company and Purchaser (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of (i) Not more than 45 days nor fewer than 30 days collecting letters of transmittal and other documents from the holders of Company Common Stock; and (ii) exchanging share of Company Common Stock on the stock transfer books of the Company that is outstanding immediately prior to the Effective DateTime for the consideration issuable in respect of such Company Common Stock pursuant to Section 1.10(a) (after giving effect to any required Tax withholding as provided under Section 1.13) and on the terms and subject to the other conditions set forth in this Agreement.
(b) At the Effective Time, First NationalPubco shall deposit, as or cause to be deposited, with the exchange agent ("Exchange Agent"), will mail a for the benefit of the holders of Company Common Stock, and for exchange in accordance with this Section 1.12 through the Exchange Agent, (i) evidence of Pubco Common Stock in book entry form of election (representing the "Form of Election"aggregate consideration issuable pursuant to Section 1.10(a) to each shareholder of record of SWVA as of a record date as close as practicable in exchange for the Company Common Stock outstanding immediately prior to the date of mailing and mutually agreed Effective Time, after giving effect to by SWVA and FNBany required Tax withholding as provided under Section 1.13. The All Pubco Common Stock in book entry form representing the aggregate consideration issuable pursuant to Section 1.10(a) deposited with the Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities be collectively referred to in a form substantially similar to Exhibit B. In additionthis Agreement as the “Exchange Fund.”
(c) Promptly after the Effective Time, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail send to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal for use in exchanging Company Common Stock in a form satisfactory to the Purchaser and the Company (a “Letter of Transmittal”) (which will shall specify that the delivery will of book entry shares or warrants in respect of the consideration to which such holder is entitled pursuant to this Article I shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent a duly executed Letter of Transmittal and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and Company Certificate (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(ior a Lost Certificate Affidavit), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agentas applicable, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required requested by the Exchange Agent, to the Exchange Agent) for use in such exchange. Until so surrendered, Company Certificate shall represent after the Effective Time for all purposes only the right to receive the consideration attributable to such Company Certificate pursuant to this Article I. Upon surrender to the Exchange Agent of: (i) any stock certificates or other instruments representing the Company Common Stock, if any, or book entry shares representing the Company Common Stock (collectively, the “Company Certificates”), or in the case of a lost, stolen or destroyed Company Certificate, upon delivery of Lost Certificate Affidavit (and indemnity, if required) in the manner provided in Section 1.12(f), for cancellation; (ii) a duly executed Letter of Transmittal; and (iii) any related documentation reasonably requested by the Exchange Agent in connection therewith, each such holder of such Certificate will shall be entitled to receive in exchange therefor therefore, and the Merger Consideration that such holder has Exchange Agent shall issue in book entry form, the right to receive consideration payable pursuant to the provisions of this Article 2I.
(d) If shares of Pubco Common Stock are to be issued in a name other than that in which the Company Certificates surrendered in exchange therefor are registered, and it will be a condition to the Certificate issuance thereof that the Company Certificates so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or (if applicable) and otherwise in proper form for transfer and that the person Persons requesting such issuance pays exchange will have paid to the Exchange Agent any transfer or other taxes required by reason of such payment to a person the issuance of the shares of Pubco Common Stock in any name other than that of the registered holder of such Certificate the Company Certificates surrendered, or establishes established to the satisfaction of FNB the Exchange Agent that such tax has been paid or is not applicable. Until surrendered as contemplated by payable.
(e) Notwithstanding anything to the contrary contained in this Section 3.1Agreement, each Certificate no fraction of a share of Pubco Common Stock will be deemed issued by Pubco by virtue of this Agreement or the Mergers or the other transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a share of Pubco Common Stock (after aggregating all fractional shares of Pubco Common Stock that otherwise would be received by such holder) shall instead have the number of shares of Pubco Common Stock issued to such Person rounded up in the aggregate to the nearest whole share of Pubco Common Stock.
(f) In the event any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (a “Lost Certificate Affidavit”) by the Person claiming such Company Certificate to be lost, stolen or destroyed and, if required by Pubco, the posting by such Person of a bond in customary amount and upon such terms as may be reasonably required by Pubco as indemnity against any claim that may be made against it with respect to such Company Certificate, Pubco will issue or cause to be issued the number of shares of Pubco Common Stock for which such lost, stolen or destroyed Company Certificates are exchangeable at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. Time.
(g) No interest will be paid or will accrue accrued on any cash payable the Pubco Common Stock to holders of Certificates be issued pursuant to this Article I (or any portion thereof). From and after the provisions Effective Time, until surrendered or transferred, as applicable, in accordance with this Section 1.12, each share of Article 2Company Common Stock shall solely represent the right to receive the number of shares of Pubco Common Stock that such share of Company Common Stock is entitled to receive pursuant to Section 1.10(a).
(h) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers of Company Common Stock that were outstanding immediately prior to the Effective Time.
(i) Any portion of the Exchange Fund that remains unclaimed by the Company Stockholders twelve (12) months following the Closing Date shall be delivered to Pubco or as otherwise instructed by Pubco, and any Company Stockholder who has not exchanged his, her or its Company Common Stock for the Pubco Common Stock in accordance with this Section 1.12 prior to that time shall thereafter look only to Pubco for the issuance of the Pubco Common Stock without any interest thereon. No Party, including Pubco, the Surviving Corporations or any of their respective Affiliates, shall be liable to any Person in respect of any consideration delivered to a public official pursuant to any applicable abandoned property, unclaimed property, escheat, or similar Law. Any Pubco Common Stock remaining unclaimed by the Company Stockholders immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of Pubco, free and clear of any claims or interest of any Person previously entitled thereto.
(j) Prior to the Effective Time, the Company shall send to each holder of a Company Option a customary letter of transmittal in form and substance reasonably acceptable to Purchaser which shall specify that the delivery of Assumed Options shall be effected in exchange for the Company Options upon the Effective Time. The Company shall include with each such letter of transmittal a notice and acknowledgment to be executed by such holder that such holder’s Company Options are being converted into Assumed Options in accordance with the terms and conditions set forth in this Agreement without further obligation on the part of the Company or Pubco and that the holder of such Company Options has no further rights or claims to any further equity in the Company in respect of such Company Option other than such conversion. The Company shall use its commercially reasonable efforts to obtain duly executed copies of all such acknowledgments, and Pubco shall not issue Assumed Options for Company Options until it shall have received from each holder thereof (x) such letter of transmittal, completed and duly executed by such holder, with respect to such Company Option, and (y) a duly executed counterpart to the agreement for the Assumed Option in form and substance to be mutually agreed by Purchaser and the Company reasonably and in good faith (an “Assumed Option Agreement”), which, among other matters, will release the Company from its obligations with respect to the Company Option.
(k) Prior to the Effective Time, the Company shall send to each holder of a Company Warrant a customary letter of transmittal in form and substance reasonably acceptable to Purchaser which shall specify that the delivery of Assumed Warrants shall be effected in exchange for the Company Warrants upon the Effective Time. The Company shall include with each such letter of transmittal a notice and acknowledgment to be executed by such holder that such holder’s Company Warrants are being converted into Assumed Warrants in accordance with the terms and conditions set forth in this Agreement without further obligation on the part of the Company or Pubco and that the holder of such Company Warrants has no further rights or claims to any further equity in the Company in respect of such Company Warrant other than such conversion. The Company shall use its commercially reasonable efforts to obtain duly executed copies of all such acknowledgments. The conversion and issuance of Assumed Warrants shall be effective as of the Effective Time in accordance with Section 1.10(d).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Compass Digital Acquisition Corp.), Agreement and Plan of Merger (Compass Digital Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of (i) a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), in each case, which at the Effective Time were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 3.1 hereof, (i) a letter of transmittal (which will which, in the case of Certificates, shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates or Uncertificated Shares in exchange for the Merger Consideration.
. Upon (iiii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto or (ii) or receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor the portion of the Merger Consideration that to which such holder has the right to receive is entitled pursuant to the provisions of Article 2Section 3.1, and the Certificate any Certificates so surrendered will shall forthwith be canceledcancelled. In If any portion of the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may Merger Consideration is to be issued paid to a person Person (as defined in Section 9.14(gg)) other than the person Person in whose name the surrendered Certificate so surrendered or the transferred Uncertificated Share is registered if registered, it shall be a condition to such payment that (i) either such Certificate is shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the person Person requesting such issuance pays payment shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Share or establish to the satisfaction of FNB Parent that such tax Tax has been paid or is not applicablepayable. Until surrendered as contemplated by this Section 3.13.2(b), each Certificate will or Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of upon such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2surrender.
Appears in 2 contracts
Sources: Merger Agreement (Indevus Pharmaceuticals Inc), Merger Agreement (Endo Pharmaceuticals Holdings Inc)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior On the Closing Date, Parent shall make available to the Effective DateExchange Agent, First Nationalfor exchange in accordance with this Section 3.3, the Merger Consideration (including cash in an aggregate amount sufficient for payment in lieu of fractional shares of Parent Common Stock to which holders of BFTL Common Stock may be entitled pursuant to Section 3.7). In addition, Parent shall make available to the Exchange Agent, as necessary from time to time at or after the exchange agent Effective Time, any dividends or other distributions payable pursuant to Section 3.3(f). All Merger Consideration ("including cash in an aggregate amount sufficient for payment in lieu of fractional shares of Parent Common Stock to which holders of BFTL Common Stock may be entitled pursuant to Section 3.7) and dividends and distributions made available to the Exchange Agent"Agent pursuant to this Section 3.3(a) shall hereinafter be referred to as the “Exchange Fund.” In the event the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent hereunder (including pursuant to Section 3.7), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable Parent shall promptly make available to the date of mailing and mutually agreed Exchange Agent the amounts so required to by SWVA and FNBsatisfy such payment obligations in full. The Exchange Agent shall enter into a written agreement with FNB deliver the Merger Consideration and SWVA detailing its duties and responsibilities and shall furnish evidence cash in lieu of liability insurance for such activities in a form substantially similar to Exhibit B. In additionany fractional shares of Parent Common Stock out of the Exchange Fund. Except as contemplated by this Section 3.3, the Exchange Agent Fund will use its best efforts not be used for any other purpose.
(b) Unless different timing is agreed to make the Form of Election available by Parent and BFTL, not later than 20 days prior to the persons who become shareholders of SWVA during the period between such record date and the anticipated Effective Date. Any election to receive Merger Consideration will have been properly made only if Time, Parent shall cause the Exchange Agent to mail to the shareholders of BFTL Common Stock appropriate transmittal materials. The letter of transmittal shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") provide instructions for the submission of certificates, if applicable, or instructions as to the BFTL Book-Entry Shares, representing shares to which such Form of Election relates, acceptable for transfer on the books of SWVA BFTL Common Stock (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior indemnity satisfactory to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to Parent and the Exchange Agent.
(ii, if any of such certificates are lost, stolen, or destroyed) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA BFTL Common Stock were converted into the right to receive the applicable portion of the Merger Consideration at the Effective Time. The Exchange Agent may establish such other reasonable and customary rules and procedures in connection with its duties as it may deem appropriate. Parent shall pay all charges and expenses, including those who failed to return a properly completed Form of Electionthe Exchange Agent, (i) a letter in connection with the distribution of transmittal (which will specify that delivery the Per Share Merger Price as provided in Sections 3.1 and 3.2. Holders of BFTL Common Stock will be effectedresponsible for all charges and expenses associated with replacing any lost, and risk of loss and title to the Certificates will passmutilated, only upon delivery of the Certificates to stolen, or destroyed certificates, including any indemnity bond expenses, as described in Section 3.3(c). Parent or the Exchange Agent and will maintain a book entry list of Parent Common Stock to which each holder of BFTL Common Stock is entitled. Certificates representing Parent Common Stock into which BFTL Common Stock has been converted will not be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Considerationissued.
(iiic) With respect to properly made elections in accordance with Section 3.1(i)After receipt of the transmittal materials from the Exchange Agent, each holder of shares of BFTL Common Stock (other than Excluded Shares) issued and upon outstanding shall surrender in accordance with Section 3.1(ii) of a Certificate for cancellation the certificate or certificates representing such shares to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required executed transmittal materials provided by the Exchange Agent, and shall promptly after the holder Effective Time, or the surrender of such Certificate will be entitled shares of BFTL Common Stock (or an indemnity satisfactory to receive BFTL, Parent and the Exchange Agent, if any of such certificates are lost, stolen, or destroyed) if later, the Exchange Agent shall deliver in exchange therefor the consideration provided in Sections 3.1 and 3.2 (and any unpaid dividends or distributions thereon), without interest, pursuant to this Section 3.3. The certificate or certificates of BFTL Common Stock so surrendered shall be duly endorsed as the Exchange Agent may reasonably require. Parent shall not be obligated to deliver the consideration to which any former holder of BFTL Common Stock is entitled as a result of the Merger Consideration that until such holder has the right surrenders such holder’s certificate or certificates for exchange (or an indemnity satisfactory to receive pursuant to the provisions of Article 2BFTL, Parent and the Certificate so surrendered will forthwith be canceledExchange Agent, if any of such certificates are lost, stolen, or destroyed) as provided in this Section 3.3. In the event of a transfer of ownership of Shares shares of BFTL Common Stock represented by one or more certificates that are not registered in the transfer records of SWVABFTL, the Per Share Merger Price payable for such shares as provided in Sections 3.1 and 3.2 may be issued to a transferee if the certificate or certificates representing such shares are delivered to the Exchange Agent, accompanied by all documents required to evidence such transfer and by evidence reasonably satisfactory to the Exchange Agent that such transfer is proper and that any applicable stock transfer taxes have been paid. In the event any certificate representing BFTL Common Stock shall have been lost, mutilated, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming such certificate to be lost, mutilated, stolen, or destroyed and the posting by such person of a bond in such amount as the Exchange Agent may reasonably direct as indemnity against any claim that may be made against it with respect to such certificate, the Exchange Agent shall issue in exchange for such lost, mutilated, stolen, or destroyed certificate the Per Share Merger Price as provided for in Sections 3.1 and 3.2 (together with any unpaid dividends or distributions with respect thereto). Any other provision of this Agreement notwithstanding, neither any Parent Entity, nor any BFTL Entity, nor the Exchange Agent shall be liable to any holder of BFTL Common Stock for any amounts paid or properly delivered in good faith to a public official pursuant to any applicable abandoned property, escheat, or similar Law.
(d) Each of Parent and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of BFTL Common Stock and BFTL Options such amounts, if any, as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, or foreign Tax Law or by any Taxing Authority or Governmental Authority. Parent and/or the Exchange Agent shall timely remit such deducted and withheld amounts to the appropriate Taxing Authority or Governmental Authority. Parent shall be responsible for, and shall pay, any penalty or interest arising from failure to timely remit such amounts. To the extent that any amounts are so withheld by Parent or the Exchange Agent, as the case may be, payment may such withheld amounts shall be issued treated for all purposes of this Agreement as having been paid to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of the shares of BFTL Common Stock, as applicable in respect of which such Certificate deduction and withholding was made by Parent or establishes the Exchange Agent, as the case may be.
(e) Any portion of the Merger Consideration and cash delivered to the satisfaction Exchange Agent by Parent pursuant to Section 3.3(a) that remains unclaimed by the holder of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time shares of BFTL Common Stock for six months after the Effective Date Time (as well as any proceeds from any investment thereof) shall be delivered by the Exchange Agent to represent Parent. Any holder of shares of BFTL Common Stock who has not theretofore complied with Section 3.3(b) shall thereafter look only to Parent for the right consideration and any unpaid dividends or distributions deliverable in respect of each share of BFTL Common Stock such holder holds as determined pursuant to this Agreement without any interest thereon. If outstanding certificates for shares of BFTL Common Stock are not surrendered or the payment for them is not claimed prior to the date on which such shares of Parent Common Stock and cash would otherwise escheat to or become the property of any Governmental Authority, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable Law, become the property of Parent (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property. Neither the Exchange Agent nor any Party to this Agreement shall be liable to any holder of stock represented by any certificate for any consideration paid to a Governmental Authority pursuant to applicable abandoned property, escheat or similar laws. Parent and the Exchange Agent shall be entitled to rely upon the stock transfer books of BFTL to establish the identity of those persons entitled to receive upon the consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any certificate or certificates, Parent and the Exchange Agent shall be entitled to deposit any consideration represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(f) No dividends or other distributions with respect to Parent Common Stock shall be paid to the holder of any unsurrendered certificate that immediately prior to the Effective Time represented shares of BFTL Common Stock with respect to the shares, if any, of Parent Common Stock represented thereby, in each case unless and until the surrender of such certificate (or an indemnity satisfactory to Parent and the Exchange Agent, if any of such certificates are lost, stolen, or destroyed) in accordance with this Section 3.3. Subject to the effect of applicable abandoned property, escheat or similar Laws, following surrender the Merger Consideration that of any such certificate in accordance with this Section 3.3, the holder thereof has shall be entitled to receive, without interest, (i) the right to receive in amount of dividends or other distributions with a record date after the Effective Time theretofore payable and that have not been paid with respect of such Certificate pursuant to the provisions whole shares of Article 2. No interest will be paid Parent Common Stock into which the shares of BFTL Common Stock represented by such certificate are converted and/or (ii) at the appropriate payment date, the amount of dividends or will accrue on any cash payable to holders of Certificates pursuant other distributions with a record date after the Effective Time (but before such surrender date) and with a payment date subsequent to the provisions issuance of Article 2the Parent Common Stock payable with respect to whole shares of Parent Common Stock into which the shares of BFTL Common Stock represented by such certificate are converted.
(g) Approval of this Agreement by the shareholders of BFTL shall constitute ratification of the appointment of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (First National Corp /Va/), Merger Agreement (First National Corp /Va/)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as UPC and Mutual shall cause the exchange agent selected by UPC (the "Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable mail to the date former stockholders of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an Mutual appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal materials (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates theretofore representing shares of Mutual Common Stock shall pass, only upon proper delivery of such certificates to the Certificates Exchange Agent). After the Effective Time, each holder of shares of Mutual Common Stock (other than shares to be canceled pursuant to Section 3.3 of this Agreement) issued and outstanding at the Effective Time shall surrender the certificate or certificates representing such shares to the Exchange Agent and will shall promptly upon surrender thereof receive in exchange therefor the consideration provided in Section 3.1 of this Agreement, together with all undelivered dividends or distributions in respect of such shares (without interest thereon) pursuant to Section 4.2 of this Agreement. To the extent required by Section 3.4 of this Agreement, each holder of shares of Mutual Common Stock issued and outstanding at the Effective Time also shall receive, upon surrender of the certificate or certificates representing such shares, cash in lieu of any fractional share of UPC Common Stock to which such holder may be otherwise entitled (without interest). UPC shall not be obligated to deliver the consideration to which any former holder of Mutual Common Stock is entitled as a result of the Merger until such holder surrenders such holder's certificate or certificates representing the shares of Mutual Common Stock for exchange as provided in such form and have such other provisions this Section 4.1. The certificate or certificates of Mutual Common Stock so surrendered shall be duly endorsed as the Exchange Agent may specify consistent with require. Any other provision of this Agreement) and (ii) instructions for use in effecting Agreement notwithstanding, neither the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to Surviving Corporation nor the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably Agent shall be required by the Exchange Agent, the liable to a holder of such Certificate will be entitled Mutual Common Stock for any amounts paid or property delivered in good faith to receive in exchange therefor the Merger Consideration that such holder has the right to receive a public official pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2applicable abandoned property Law.
Appears in 2 contracts
Sources: Merger Agreement (First Mutual Bancorp Inc), Agreement and Plan of Reorganization (Union Planters Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon as reasonably practicable after the Effective DateTime, but in any event within five business days thereafter, the Exchange Agent will shall mail to each holder of record of a CertificateCertificate(s) or Book-Entry Shares which, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.4 and those who failed any cash in lieu of fractional shares of Purchaser Common Stock to return a properly completed Form of Election, be issued or paid in consideration therefor (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Certificate(s) or Book-Entry Shares shall pass, only upon delivery of the Certificates Certificate(s) (or affidavits of loss in lieu of such Certificate(s))) or Book-Entry Shares to the Exchange Agent and will shall be substantially in such form and have such other provisions as shall be prescribed by the Exchange Agent may specify consistent with this AgreementAgreement and are reasonably acceptable to Company (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates surrendering Certificate(s) or Book-Entry Shares in exchange for the applicable Merger Consideration, any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor and any dividends or distributions to which such holder is entitled pursuant to this Article II.
(iiib) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of its Certificate(s) or Book-Entry Shares, together with such letter accompanied by a properly completed Letter of transmittalTransmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the a holder of such Certificate Company Common Stock will be entitled to receive in exchange therefor promptly after the Effective Time, the applicable Merger Consideration that and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor in respect of the shares of Company Common Stock represented by its Certificate(s) or Book-Entry Shares. Until so surrendered, each such holder has Certificate or Book-Entry Shares shall represent after the Effective Time, for all purposes, only the right to receive receive, without interest, the applicable Merger Consideration and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration upon surrender of such Certificate or Book-Entry Shares in accordance with, and any dividends or distributions to which such holder is entitled pursuant to, this Article II.
(c) No dividends or other distributions with respect to Purchaser Common Stock shall be paid to the provisions holder of any unsurrendered Certificate or Book-Entry Shares with respect to the shares of Purchaser Common Stock represented thereby, in each case unless and until the surrender of such Certificate or Book-Entry Share in accordance with this Article 2II. Subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any such Certificate or Book-Entry Share in accordance with this Article II, the record holder thereof shall be entitled to receive, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore payable with respect to the whole shares of Purchaser Common Stock represented by such Certificate or Book-Entry Share and paid prior to such surrender date, and/or (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to shares of Purchaser Common Stock represented by such Certificate so surrendered will forthwith be canceled. or Book-Entry Shares with a record date after the Effective Time (but before such surrender date) and with a payment date subsequent to the issuance of the Purchaser Common Stock issuable with respect to such Certificate or Book-Entry Shares.
(d) In the event of a transfer of ownership of a Certificate or Book-Entry Shares representing Company Common Stock that are is not registered in the stock transfer records of SWVACompany, as the case may be, payment may shares of Purchaser Common Stock and cash in lieu of fractional shares of Purchaser Common Stock comprising the Merger Consideration shall be issued or paid in exchange therefor to a person other than the person in whose name the Certificate or Book-Entry Shares so surrendered is registered if the Certificate or Book-Entry Shares formerly representing such Certificate is Company Common Stock shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment or issuance pays shall pay any transfer or other similar taxes required by reason of such the payment or issuance to a person other than the registered holder of such the Certificate or establishes Book-Entry Shares, or establish to the reasonable satisfaction of FNB Purchaser that such the tax has been paid or is not applicable. Until surrendered The Exchange Agent (or, subsequent to the earlier of (x) the one-year anniversary of the Effective Time and (y) the expiration or termination of the Exchange Agent Agreement, Purchaser or the Surviving Company) shall be entitled to deduct and withhold from any cash in lieu of fractional shares of Purchaser Common Stock otherwise payable pursuant to this Agreement to any holder of Company Common Stock such amounts as contemplated the Exchange Agent, Purchaser or the Surviving Company, as the case may be, is required to deduct and withhold under the Code, or any provision of state, local or foreign tax law, with respect to the making of such payment. To the extent the amounts are so withheld by the Exchange Agent, Purchaser or the Surviving Company, as the case may be, and timely paid over to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Section 3.1Agreement as having been paid to the holder of shares of Company Common Stock in respect of whom such deduction and withholding was made by the Exchange Agent, each Certificate will or Purchaser or the Surviving Company, as the case may be.
(e) After the Effective Time, there shall be deemed at any time no transfers on the stock transfer books of Company of the shares of Company Common Stock that were issued immediately prior to the Effective Time other than to settle transfers of Company Common Stock that occurred prior to the Effective Time. If, after the Effective Date Time, Certificates or Book-Entry Shares representing such shares are presented for transfer to represent only the right Exchange Agent, they shall be cancelled and exchanged for the applicable Merger Consideration and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor in accordance with the procedures set forth in this Article II.
(f) Notwithstanding anything to the contrary contained in this Agreement, no fractional shares of Purchaser Common Stock shall be issued upon the surrender of Certificates or Book-Entry Shares for exchange, no dividend or distribution with respect to Purchaser 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 shareholder of Purchaser. In lieu of the issuance of any such fractional share, Purchaser shall pay to each former stockholder of Company who otherwise would be entitled to receive upon such surrender fractional share an amount in cash (rounded to the nearest cent) determined by multiplying (i) the average of the high and low sales prices of Purchaser Common Stock on the New York Stock Exchange, as reported on the New York Stock Exchange Composite Transaction Tape, on each of the five consecutive trading days ending on the trading day that is two trading days prior to the Closing Date by (the “Purchaser Closing Price”) (ii) the fraction of a share (after taking into account all shares of Company Common Stock held by such holder at the Effective Time and rounded to the nearest thousandth when expressed in decimal form) of Purchaser Common Stock which such holder would otherwise be entitled to receive pursuant to Section 1.4.
(g) Any portion of the Exchange Fund that remains unclaimed by the stockholders of Company as of the one year anniversary of the Effective Time will be paid to Purchaser. In such event, any former stockholders of Company who have not theretofore complied with this Article II shall thereafter look only to Purchaser with respect to the Merger Consideration that Consideration, any cash in lieu of any fractional shares and any unpaid dividends and distributions on the holder thereof has the right to receive Purchaser Common Stock deliverable in respect of each share of Company Common Stock such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of Purchaser, the Surviving Company, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(h) 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 reasonably required by Purchaser or the Exchange Agent, the posting by such person of a bond in such amount as Purchaser may determine is reasonably necessary 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 applicable Merger Consideration deliverable in respect thereof pursuant to the provisions of Article 2. No interest will be paid or will accrue on this Agreement, including any cash payable to holders in lieu of Certificates pursuant to the provisions of Article 2fractional shares.
Appears in 2 contracts
Sources: Merger Agreement (SWS Group Inc), Merger Agreement (Hilltop Holdings Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Time and in any event within three (3) Business Days following the Closing Date, the Exchange Surviving Corporation or Parent shall cause the Paying Agent will to mail to each holder of record of a Certificate, Certificate whose shares of SWVA Company Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.01(c), (i) a form of letter of transmittal (which will shall include an accompanying IRS Form W-9 or the applicable IRS Form W-8, shall specify that delivery will shall be effected, effected and risk of loss and title to the Certificates will pass, held by such person shall pass only upon proper delivery of the Certificates to the Exchange Agent Paying Agent, and will shall be in such a customary form and have such other customary provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
. Notwithstanding the foregoing, any holder of shares of Company Common Stock held in book-entry form shall not be required to deliver a Certificate or an executed letter of transmittal to receive the Merger Consideration pursuant to Section 2.01(c) in respect thereof and shall, upon receipt of an “agent’s message” in customary form at the Effective Time (iiior such other customary evidence, if any, as the Paying Agent may reasonably request) With be deemed to have surrendered the Certificate with respect to properly made elections such shares of Company Common Stock held in accordance with Section 3.1(i), and upon book-entry form. Upon surrender in accordance with Section 3.1(ii(or deemed surrender) of a Certificate for cancellation cancelation to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by P▇▇▇▇▇, together with such letter of transmittal, duly completed and validly executed, as applicable, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor the amount of cash equal to the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2Section 2.01(c), and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that are is not registered in the stock transfer records books of SWVA, as the case may beCompany, payment of the Merger Consideration in exchange therefor may be issued made to a person other than the person in whose name the Certificate so surrendered is registered registered, if such Certificate is shall be properly endorsed or otherwise be in proper form for transfer transfer, and the person requesting such issuance pays payment shall pay any transfer or other taxes required by reason of such the payment to a person other than the registered holder of such Certificate or establishes establish to the satisfaction of FNB the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will shall be paid or will shall accrue on any the cash payable to holders upon surrender of Certificates pursuant to the provisions of Article 2any Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Confluent, Inc.), Merger Agreement (Confluent, Inc.)
Exchange Procedures. (ia) Not Promptly after the execution of this Agreement, Parent shall designate and appoint Computershare Trust Company, N.A. or an Affiliate thereof to act as exchange agent hereunder (the “Exchange Agent”) for the purpose of exchanging Certificates.
(b) Promptly after the Effective Time, but in any event not more than 45 days nor fewer than 30 days prior to five (5) Business Days after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record as of a Certificate, whose immediately prior to the Effective Time of shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each such holder, a properly completed Form of Election“Company Common Stock Holder”), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will each Certificate representing any shares of Company Common Stock held by such Company Common Stock Holder shall pass, only upon delivery of the Certificates completed letter of transmittal and such Certificate to the Exchange Agent and will shall be in such form and have such other provisions as Parent and the Exchange Agent may specify consistent with this AgreementCompany shall mutually agree) and (ii) instructions for use in effecting the surrender of the Certificates each such Certificate in exchange for the total amount of Merger ConsiderationConsideration that such Company Common Stock Holder is entitled to receive in exchange for such holder’s shares of Company Common Stock in the Merger pursuant to this Agreement. From and after the Effective Time, until surrendered as contemplated by this Section 3.2, each Certificate representing shares of Company Common Stock held by a Company Common Stock Holder shall be deemed to represent only the right to receive the total amount of Merger Consideration to which such Company Common Stock Holder is entitled in exchange for such shares of Company Common Stock as contemplated by Section 2.
(iiic) With respect Upon surrender by a Company Common Stock Holder to properly made elections the Exchange Agent of all Certificates representing such holder’s shares of Company Common Stock, together with a letter of transmittal duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will each Company Common Stock Holder shall be entitled to receive in exchange therefor (and the Merger Consideration Exchange Agent shall mail to such Company Common Stock Holder within ten (10) Business Days following such surrender): (i) a certificate (or certificates in the aggregate) representing the number of whole shares of Parent Stock into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, and such Certificates so surrendered shall be forthwith cancelled, and (ii) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Section 3.7) equal to (A) the amount of cash in lieu of a fractional share of Parent Stock to be paid pursuant to Section 2.1(c)), if any, into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, plus (B) any cash dividends and other distributions that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 23.3.
Appears in 2 contracts
Sources: Merger Agreement (Fairpoint Communications Inc), Merger Agreement (Consolidated Communications Holdings, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon as reasonably practicable after the REIT Merger Effective DateTime, GCEAR shall issue, and shall cause DST Systems, Inc., or any successor transfer agent of GCEAR (the Exchange Agent will mail “Transfer Agent”), to record on the stock records of GCEAR the issuance of, shares of GCEAR Common Stock (including any fractional shares thereof) equal to the REIT Merger Consideration that is issuable to each holder of record Eligible Shares pursuant to Section 3.1 and each holder of a CertificateCCIT II Restricted Share Awards pursuant to Section 3.2. For the avoidance of doubt, whose shares payment of SWVA Common Stock were converted into the right to receive REIT Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will shall only be effected, and risk of loss and title made to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person Person in whose name the Certificate so surrendered is relevant Eligible Shares are registered if such Certificate is properly endorsed in the stock transfer books of CCIT II as of the REIT Merger Effective Time.
(b) None of GCEAR, CCIT II, the REIT Surviving Entity, the Transfer Agent, or otherwise in proper form for transfer and the person requesting such issuance pays any transfer employee, officer, director, agent or other taxes required by reason Affiliate of such payment entities, shall be liable to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive Person in respect of such Certificate any REIT Merger Consideration (or the appropriate portion thereof) that has been delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts so delivered that remain unclaimed by holders of Eligible Shares immediately prior to the provisions time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of Article 2. GCEAR free and clear of any claims or interest of such holders or their successors, assigns or personal representatives previously entitled thereto.
(c) No interest will shall be paid or will accrue accrued on the REIT Merger Consideration (or any cash amounts in respect thereof, including any dividends payable to on shares of GCEAR Common Stock) for the benefit of holders of Certificates pursuant to the provisions of Article 2Eligible Shares or CCIT II Restricted Share Awards.
Appears in 2 contracts
Sources: Merger Agreement (Cole Office & Industrial REIT (CCIT II), Inc.), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior Prior to the Effective DateTime, First NationalChittenden shall deposit, as or shall cause to be deposited, with a bank or trust company selected by Chittenden and reasonably acceptable to VFSC (the exchange agent ("Exchange Agent"), will mail a form for the benefit of election the holders of certificates representing shares of VFSC Common Stock immediately prior to the Effective Time ("Old Certificates"), for exchange in accordance with this Article III, certificates representing the shares of Chittenden Common Stock ("New Certificates") and an estimated amount of cash to be paid in lieu of fractional shares (such cash and New Certificates, together with any dividends or distributions with respect thereto (without any interest thereon), being hereinafter referred to as the "Form of ElectionExchange Fund") to each shareholder be paid pursuant to this Article III in exchange for outstanding shares of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentVFSC Common Stock.
(iib) As soon promptly as reasonably practicable after the Effective DateTime, the Exchange Agent will mail and in any event within seven business days thereafter, Chittenden shall send or cause to be sent to each holder of record of a Certificateshares (other than Treasury Shares) of VFSC Common Stock immediately prior to the Effective Time transmittal materials for use in exchanging such stockholder's Old Certificates for the consideration set forth in this Article III. Chittenden shall cause the New Certificates, whose into which shares of SWVA a stockholder's VFSC Common Stock were are convertible from and after the Effective Time, and/or any check in respect of any fractional share interests or dividends or distributions which such person shall be entitled to receive, to be delivered to such stockholder upon delivery to the Exchange A-7
(c) Notwithstanding the foregoing, neither the Exchange Agent nor any party hereto or any affiliate thereof shall be liable to any former holder of VFSC Common Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(d) No dividends or other distributions with respect to Chittenden Common Stock with a record date occurring after the Effective Time shall be paid to the holder of any unsurrendered Old Certificate representing shares of VFSC Common Stock converted in the Merger into the right to receive Merger Consideration and those who failed to return a properly completed Form shares of Electionsuch Chittenden Common Stock until the holder thereof shall surrender such Old Certificate, (i) a letter of together with the necessary transmittal (which will specify that delivery will be effectedmaterials, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent accordance with this Agreement) and (ii) instructions for use in effecting Article III. Subject to applicable law, after the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections an Old Certificate in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agentthis Article III, the record holder of such Certificate will thereof shall be entitled to receive in exchange therefor the Merger Consideration that any such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer dividends or other taxes required distributions, without any interest thereon, which theretofore had become payable with respect to shares of Chittenden Common Stock for which such Old Certificate was exchangeable.
(e) Any portion of the Exchange Fund that remains unclaimed by reason the stockholders of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time VFSC for twelve (12) months after the Effective Date Time shall be paid to represent only Chittenden, subject to the right rights of such stockholders to receive upon payments from any such surrender portion of the Merger Consideration that Exchange Fund in accordance with the holder thereof has terms of this Article III. Any stockholders of VFSC who have not theretofore complied with this Article III shall thereafter look only to Chittenden for payment of the right to receive shares of Chittenden Common Stock, cash in lieu of any fractional shares and unpaid dividends and distributions on the Chittenden Common Stock deliverable in respect of each share of VFSC Common Stock such Certificate stockholder holds as determined pursuant to the provisions of Article 2. No this Agreement, in each case, without any interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2thereon.
Appears in 2 contracts
Sources: Merger Agreement (Chittenden Corp /Vt/), Merger Agreement (Chittenden Corp /Vt/)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days Prior to the Closing, PubCo shall appoint an exchange agent (the “Exchange Agent”) to act as the agent for the purpose of distributing PubCo Ordinary Shares to HCM’s shareholders. At or before the Effective Time, PubCo shall issue to the Exchange Agent the number of shares of PubCo Ordinary Shares to be paid to the holders of HCM Ordinary Shares pursuant to Section 3.1.
(b) Reasonably promptly after the Effective Time, PubCo shall send or shall cause the Exchange Agent to send, to each record holder of HCM Ordinary Shares as of immediately prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a CertificateTime, whose shares of SWVA Common Stock HCM Ordinary Shares were converted pursuant to Section 3.1(a) into the right to receive Merger Consideration and those who failed to return a properly completed Form of ElectionRights, (i) a letter of transmittal and instructions (which will shall specify that the delivery will shall be effected, and the risk of loss and title to the Certificates will shall pass, only upon delivery proper transfer of the Certificates each share to the Exchange Agent Agent, and which letter of transmittal will be in customary form) for use in such form and exchange (each, a “Letter of Transmittal”).
(c) Each holder of HCM Ordinary Shares that have been converted into the Merger Rights pursuant to Section 3.1(a) shall be entitled to receive its PubCo Ordinary Shares, upon receipt of an “agent’s message” by the Exchange Agent (or such other provisions evidence, if any, of transfer as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(ireasonably request), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter a duly completed and validly executed Letter of transmittal, duly executed, Transmittal and such other documents as may reasonably be required requested by the Exchange Agent. No interest shall be paid or accrued upon the transfer of any share.
(d) Promptly following the date that is one year after the Effective Time, PubCo shall instruct the holder of such Certificate will be entitled Exchange Agent to receive deliver to PubCo all documents in exchange therefor the Merger Consideration that such holder has the right to receive pursuant its possession relating to the provisions of Article 2transactions contemplated hereby, and the Certificate so surrendered will forthwith be canceledExchange Agent’s duties shall terminate. In the event of a transfer of ownership of Thereafter, any PubCo Ordinary Shares that are not registered in the transfer records of SWVAremain unclaimed shall be returned to PubCo for no consideration (om niet), as the case may be, payment may be issued to and any Person that was a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes HCM Ordinary Shares as of immediately prior to the satisfaction of FNB Effective Time that has not exchanged such tax has been paid or is not applicable. Until surrendered as contemplated by Person’s Merger Rights for PubCo Ordinary Shares in accordance with this Section 3.1, each Certificate will be deemed at any time 3.2 prior to the date that is one year after the Effective Date Time, may transfer such Merger Rights to represent only PubCo and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and PubCo shall promptly deliver, such applicable PubCo Ordinary Shares without any interest thereupon. None of the right Parties or the Exchange Agent shall be liable to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive any Person in respect of such Certificate any PubCo Ordinary Shares delivered to a public official pursuant to the provisions of Article 2and in accordance with any applicable abandoned property, escheat or similar Laws. No interest will be paid or will accrue If any such shares shall not have been transferred immediately prior to such date on which any cash amounts payable to holders of Certificates pursuant to this Article III would otherwise escheat to or become the provisions property of Article 2any Governmental Authority, any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Business Combination Agreement (HCM Acquisition Corp), Business Combination Agreement (HCM Acquisition Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will shall mail to each holder of record of a CertificateCertificate(s) or Book-Entry Shares which, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.4 and those who failed any cash in lieu of fractional shares of Purchaser Common Stock to return a properly completed Form of Election, be issued or paid in consideration therefor (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Certificate(s) or Book-Entry Shares shall pass, only upon delivery of the Certificates Certificate(s) (or affidavits of loss in lieu of such Certificate(s))) or Book-Entry Shares to the Exchange Agent and will shall be substantially in such form and have such other provisions as shall be prescribed by the Exchange Agent may specify consistent with this AgreementAgreement (the “Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates surrendering Certificate(s) or Book-Entry Shares in exchange for the applicable Merger Consideration, any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor and any dividends or distributions to which such holder is entitled pursuant to Section 2.3(c).
(iiib) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of its Certificate(s) or Book-Entry Shares, together with such letter accompanied by a properly completed Letter of transmittalTransmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the a holder of such Certificate Company Common Stock will be entitled to receive in exchange therefor promptly after the Effective Time the applicable Merger Consideration that and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor in respect of the shares of Company Common Stock represented by its Certificate(s) or Book Entry Shares. Until so surrendered, each such holder has Certificate or Book-Entry Shares shall represent after the Effective Time, for all purposes, only the right to receive receive, without interest, the applicable Merger Consideration and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor upon surrender of such Certificate or Book-Entry Shares in accordance with, and any dividends or distributions to which such holder is entitled pursuant to, this Article II.
(c) No dividends or other distributions with respect to Purchaser Common Stock shall be paid to the provisions holder of any unsurrendered Certificate or Book-Entry Shares with respect to the shares of Purchaser Common Stock represented thereby, in each case unless and until the surrender of such Certificate or Book-Entry Share in accordance with this Article 2II. Subject to the effect of applicable abandoned property, escheat or similar laws, following surrender of any such Certificate or Book-Entry Share in accordance with this Article II, the record holder thereof shall be entitled to receive, without interest, (i) the amount of dividends or other distributions with a record date after the Effective Time theretofore payable with respect to the whole shares of Purchaser Common Stock represented by such Certificate or Book-Entry Share and paid prior to such surrender date, and/or (ii) at the appropriate payment date, the amount of dividends or other distributions payable with respect to shares of Purchaser Common Stock represented by such Certificate so surrendered will forthwith be canceled. or Book-Entry Shares with a record date after the Effective Time (but before such surrender date) and with a payment date subsequent to the issuance of the Purchaser Common Stock issuable with respect to such Certificate or Book-Entry Shares.
(d) In the event of a transfer of ownership of a Certificate or Book-Entry Shares representing Company Common Stock that are is not registered in the stock transfer records of SWVACompany, as the case may be, payment may shares of Purchaser Common Stock and cash in lieu of fractional shares of Purchaser Common Stock comprising the Merger Consideration shall be issued or paid in exchange therefor to a person other than the person in whose name the Certificate or Book-Entry Shares so surrendered is registered if the Certificate or Book-Entry Shares formerly representing such Certificate is Company Common Stock shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such payment or issuance pays shall pay any transfer or other similar taxes required by reason of such the payment or issuance to a person other than the registered holder of such the Certificate or establishes Book-Entry Shares, or establish to the reasonable satisfaction of FNB Purchaser that such the tax has been paid or is not applicable. Until surrendered The Exchange Agent (or, subsequent to the earlier of (x) the one-year anniversary of the Effective Time and (y) the expiration or termination of the Exchange Agent Agreement, Purchaser or the Surviving Company) shall be entitled to deduct and withhold from any cash in lieu of fractional shares of Purchaser Common Stock otherwise payable pursuant to this Agreement to any holder of Company Common Stock such amounts as contemplated the Exchange Agent or Purchaser, as the case may be, is required to deduct and withhold under the Code, or any provision of state, local or foreign tax law, with respect to the making of such payment. To the extent the amounts are so withheld by the Exchange Agent, Purchaser or the Surviving Company, as the case may be, and timely paid over to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Section 3.1Agreement as having been paid to the holder of shares of Company Common Stock in respect of whom such deduction and withholding was made by the Exchange Agent or Purchaser, each Certificate will as the case may be.
(e) After the Effective Time, there shall be deemed at any time no transfers on the stock transfer books of Company of the shares of Company Common Stock that were issued and outstanding immediately prior to the Effective Time other than to settle transfers of Company Common Stock that occurred prior to the Effective Time. If, after the Effective Date Time, Certificates or Book-Entry Shares representing such shares are presented for transfer to represent only the right Exchange Agent, they shall be cancelled and exchanged for the applicable Merger Consideration and any cash in lieu of fractional shares of Purchaser Common Stock to be issued or paid in consideration therefor in accordance with the procedures set forth in this Article II.
(f) Notwithstanding anything to the contrary contained in this Agreement, no fractional shares of Purchaser Common Stock shall be issued upon the surrender of Certificates for exchange, no dividend or distribution with respect to Purchaser 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 shareholder of Purchaser. In lieu of the issuance of any such fractional share, Purchaser shall pay to each former shareholder of Company who otherwise would be entitled to receive upon such surrender fractional share an amount in cash (rounded to the nearest cent) determined by multiplying (i) the average, rounded to the nearest one ten-thousandth, of the closing sale prices of Purchaser Common Stock based on information reported by the Toronto Stock Exchange (“TSX”) as reported in The Toronto Stock Exchange Daily Record (with each such trading day’s applicable price converted into United States dollars using the noon rate of exchange reported with respect to such day by the Bank of Canada) for the five (5) trading days immediately preceding the Effective Time by (ii) the fraction of a share (after taking into account all shares of Company Common Stock held by such holder at the Effective Time and rounded to the nearest thousandth when expressed in decimal form) of Purchaser Common Stock to which such holder would otherwise be entitled to receive pursuant to Section 1.4.
(g) Any portion of the Exchange Fund that remains unclaimed by the shareholders of Company as of the one year anniversary of the Effective Time may be paid to Purchaser. In such event, any former shareholders of Company who have not theretofore complied with this Article II shall thereafter look only to Purchaser with respect to the Merger Consideration that Consideration, any cash in lieu of any fractional shares and any unpaid dividends and distributions on the holder thereof has the right to receive Purchaser Common Stock deliverable in respect of each share of Company Common Stock such shareholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of Purchaser, the Surviving Company, the Exchange Agent or any other person shall be liable to any former holder of shares of Company Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(h) 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 reasonably required by Purchaser or the Exchange Agent, the posting by such person of a bond in such amount as Purchaser may determine is reasonably necessary 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 applicable Merger Consideration deliverable in respect thereof pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Marshall & Ilsley Corp), Merger Agreement (Bank of Montreal /Can/)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, As promptly as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, and in any event within five (5) Business Days thereafter, Parent shall cause the Exchange Agent will to mail to each holder of record of a Certificate, shares of Company Common Stock whose shares of SWVA Company Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 2.1(a)(i): (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and which shall have such other provisions as Parent and the Exchange Agent Company may specify consistent with this Agreementagree) and (ii) instructions for use in effecting the surrender of surrendering the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for cash comprising the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Book-Entry Share or a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed, and and/or such other documents as may be reasonably be required by the Exchange Agent, the holder of such Book-Entry Share or Certificate will shall be entitled to receive in exchange therefor a check for the Merger Consideration that such holder has the right is entitled to receive pursuant to the provisions of this Article 2II, and the Book-Entry Share or Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares shares of Company Common Stock that are is not registered in the transfer records of SWVAthe Company, as a check for the case may be, payment may proper amount of cash comprising the Merger Consideration shall be issued to a person Person other than the person Person in whose name the Certificate so surrendered is registered if registered, if, upon presentation to the Exchange Agent, such Certificate is shall be properly endorsed or otherwise be in proper form for transfer and transfer. In such case, the person requesting such issuance pays amount of any stock transfer or other taxes required by reason similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of such issuance or transfer to such other Person shall be deducted from the amount otherwise payable pursuant to the immediately preceding sentence, unless evidence satisfactory to the Exchange Agent of the payment to a person other than the registered holder of such Certificate Taxes, or establishes to the satisfaction of FNB that such tax has been paid or exemption therefrom, is not applicablesubmitted. Until surrendered as contemplated by this Section 3.12.2(b), each Book-Entry Share and Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Consideration. No interest will be paid or will accrue for the benefit of holders of shares of Company Common Stock on any cash the Merger Consideration payable to holders of Certificates Company Common Stock pursuant to the provisions of this Article 2II.
Appears in 2 contracts
Sources: Merger Agreement (Cascade Corp), Merger Agreement (Cascade Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), Parent will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, instruct the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each record holder of record Public Common Units as of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time (i) a letter of transmittal (which will specify specifying that in respect of certificated Public Common Units, delivery will be effected, and risk of loss and title to the Certificates will pass, only upon proper delivery of the Certificates to the Exchange Agent Agent, and which will be in such customary form and have such other provisions as agreed to by Parent and the Exchange Agent may specify consistent with this AgreementPartnership prior to the Effective Time) and (ii) instructions (in customary form and agreed to by Parent and the Partnership prior to the Effective Time) for use in effecting the surrender of the Certificates or Book-Entry Units in exchange for the Merger Consideration.
(iii) With Consideration payable in respect to properly made elections in accordance with Section 3.1(i)of Public Common Units represented by such Certificates or Book-Entry Units, and as applicable. Promptly after the Effective Time, upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates, if any, for cancellation to the Exchange Agent, Agent together with such letter letters of transmittal, properly completed and duly executed, and such other documents (including in respect of Book-Entry Units) as may be reasonably be required by pursuant to such instructions, each holder who held Public Common Units immediately prior to the Exchange Agent, the holder of such Certificate Effective Time will be entitled to receive upon surrender of the Certificates or Book-Entry Units therefor (subject to any applicable withholding Tax) (A) Parent Shares representing, in exchange therefor the Merger Consideration aggregate, the whole number of Parent Shares that such holder has the right to receive pursuant to this Article III (after taking into account all Public Common Units then held by such holder) and (B) a check in an amount equal to the provisions aggregate amount of cash that such holder has the right to receive pursuant to this Article 2III, and the Certificate so surrendered including dividends or other distributions pursuant to Section 3.3(c), if any. No interest will forthwith be canceledpaid or accrued on any dividends or other distributions payable pursuant to Section 3.3(c). In the event of a transfer of ownership of Shares Public Common Units that are is not registered in the transfer records of SWVAthe Partnership, as the Merger Consideration payable in respect of such Public Common Units may be paid to a transferee if the Certificate representing such Public Common Units or evidence of ownership of the Book-Entry Units is presented to the Exchange Agent, and in the case may beof both certificated and book-entry Public Common Units, payment may be issued accompanied by all documents reasonably required to a person other than the person in whose name the Certificate so surrendered is registered if evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer transfer, and the person Person requesting such issuance pays exchange will pay to the Exchange Agent in advance any transfer or other taxes Taxes required by reason of such payment to a person the delivery of the Merger Consideration in any name other than that of the registered record holder of such Certificate Public Common Units, or establishes will establish to the satisfaction of FNB the Exchange Agent that such tax has Taxes have been paid or is are not applicablepayable. Until all such required documentation has been delivered and Certificates, if any, have been surrendered as contemplated by this Section 3.13.3(b), each Certificate or Book-Entry Unit will be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the upon such delivery and surrender, any cash or dividends or other distributions to which such holder thereof has the right is entitled pursuant to receive Section 3.3(c) or Section 3.3(d) and any distribution in respect of such Certificate pursuant the Common Units with a record date occurring prior to the provisions Effective Time that may have been declared by the Partnership on the Common Units in accordance with the terms of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to this Agreement and the provisions of Article 2Partnership Agreement and remains unpaid at the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Rattler Midstream Lp), Merger Agreement (Rattler Midstream Lp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon as reasonably practicable after the Merger Effective DateTime, CMFT shall cause DST Systems, Inc., or any successor transfer agent of CMFT (the Exchange Agent will mail “Transfer Agent”), to record on the stock records of CMFT the issuance of shares of CMFT Common Stock (including any fractional shares thereof) equal to the Merger Consideration that is issuable to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right Eligible Shares pursuant to receive Merger Consideration Section 3.1 and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the each holder of such Certificate will be entitled CCPT V Restricted Share Awards pursuant to receive in exchange therefor Section 3.2. For the avoidance of doubt, payment of the Merger Consideration that such holder has the right to receive pursuant shall only be made to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person Person in whose name the Certificate so surrendered is relevant Eligible Shares are registered if such Certificate is properly endorsed in the stock transfer books of CCPT V as of the Merger Effective Time.
(b) None of CMFT, CCPT V, the Surviving Entity, the Transfer Agent, or otherwise in proper form for transfer and the person requesting such issuance pays any transfer employee, officer, director, agent or other taxes required by reason Affiliate of such payment entities, shall be liable to any Person in respect of any Merger Consideration (or the appropriate portion thereof) that has been delivered to a person other than public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts so delivered that remain unclaimed by holders of Eligible Shares immediately prior to the registered holder time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of CMFT free and clear of any claims or interest of such Certificate holders or establishes to the satisfaction of FNB that such tax has been their successors, assigns or personal representatives previously entitled thereto.
(c) No interest shall be paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender accrued on the Merger Consideration that the holder thereof has the right to receive (or any amounts in respect thereof, including any dividends payable on shares of such Certificate pursuant to CMFT Common Stock) for the provisions benefit of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Eligible Shares or CCPT V Restricted Share Awards.
Appears in 2 contracts
Sources: Merger Agreement (Cole Credit Property Trust V, Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Surviving Corporation shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, instruct the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery)mail, as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will mail to each holder of record of a Certificate, non-certificated shares of Company Common Stock represented by book entry (“Book Entry Shares”) that immediately before the Effective Time represented outstanding shares of Company Common Stock whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.01(c), (i) a letter of transmittal in a form reasonably agreed between the parties (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Book Entry Shares shall pass, only upon delivery of the Certificates Book Entry Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates Book Entry Shares in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate Book Entry Shares for cancellation cancelation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration that number of whole shares of Parent Common Stock, if any, which the aggregate number of Company Common Stock previously represented by such holder has Book Entry Shares shall have been converted pursuant to Section 2.01(c) (Conversion of Company Common Stock) into the right to receive pursuant to the provisions of Article 2receive, and the Certificate Book Entry Shares so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that are is not registered in the transfer records of SWVA, as the case may beCompany, payment may be made and shares may be issued to a person Person other than the person Person in whose name the Certificate Book Entry Shares so surrendered is registered if such Certificate is properly endorsed or otherwise Book Entry Shares shall be in proper form for transfer and the person Person requesting such issuance pays payment shall pay any transfer or other taxes required by reason of such the payment to a person Person other than the registered holder of such Certificate Book Entry Shares or establishes establish to the satisfaction of FNB Parent that such tax has been paid or is not applicable. Until Subject to the last sentence of Section 2.02(c), until surrendered as contemplated by this Section 3.12.02, each Certificate will Book Entry Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that into which the holder thereof has the right to receive in respect of Company Common Stock theretofore represented by such Certificate Book Entry Share have been converted pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 2.01(c).
Appears in 2 contracts
Sources: Merger Agreement (Pyxis Oncology, Inc.), Merger Agreement (Apexigen, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior 2.3.1. Gart shall designate a bank or trust company reasonably acceptable to the Effective Date, First National, Company to act as the exchange agent hereunder (the "Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and At the Effective Date. Any election Time, Gart shall deliver or cause to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline")be delivered, a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relatesin trust, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with the provisions in this Article 2, through the Exchange Agent, the Merger Consideration (such Merger Consideration, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Exchange Fund") to be paid pursuant to Section 2.2.1 and to be deposited pursuant to this Section 2.3.1 in exchange for shares of Company Common Stock. Pending distribution pursuant to Section 2.3.2 of the Exchange Fund deposited with the Exchange Agent, all cash so deposited shall be held in trust for the benefit of the holders of Other Shares and such cash shall not be used for any other purposes; provided, however, that the Surviving Corporation may direct the Exchange Agent to invest such cash, provided that such investments (a) shall be (i) obligations of, or guaranteed by, the United States of America, (ii) in commercial paper obligations receiving the highest rating from either ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation, or (iii) in certificates of deposit, bank repurchase agreements or bankers acceptances of domestic commercial banks with capital exceeding $250,000,000 (collectively, "Permitted Investments") or shall be in money market funds that are invested solely in Permitted Investments and (b) shall have maturities that will not prevent or delay payments to be made pursuant to Section 2.3.2.
2.3.2. As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will shall mail to each Person who was, at the Effective Time, a holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of ElectionOther Shares, (i) a form of letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates evidencing the Other Shares (the "Share Certificates") shall pass, only upon proper delivery of the Certificates a Share Certificate to the Exchange Agent Agent, and will which shall be in such form and have such other provisions as Gart and the Exchange Agent Company may reasonably specify consistent with this Agreementprior to the Effective Time) and (ii) instructions for use in effecting the surrender of the Share Certificates in exchange for the Merger Consideration.
(iii) With respect pursuant to properly made elections in accordance with Section 3.1(i), and upon such letter of transmittal. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of a Share Certificate, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Share Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that for each Other Share formerly represented by such Share Certificate, and the Share Certificate so surrendered shall forthwith be cancelled. No interest shall accrue or be paid on the Cash Consideration, the Cash In Lieu or any unpaid dividends or distributions payable pursuant to Section 2.3.3 upon the surrender of any Share Certificate for the benefit of the holder has of such Share Certificate. Until surrendered as contemplated by this Section 2.3, each Share Certificate or other instrument shall, from and after the Effective Time, be deemed to represent only the right to receive the Merger Consideration (and any unpaid dividends or distributions payable pursuant to Section 2.3.3), and, until such surrender, no cash or other consideration or payment of any kind shall be paid to the provisions holder of Article 2such outstanding Share Certificate or other instrument in respect thereof.
2.3.3. No dividends or other distributions that are declared on or after the Effective Time on Gart Common Stock, or are payable to the holders of record thereof who became such on or after the Effective Time, shall be paid to any Person entitled by reason of the Merger to receive certificates representing shares of Gart Common Stock until such Person shall have surrendered its Share Certificates as provided in Section 2.3.2 (or such Person shall have complied with Section 2.3.5). Subject to applicable Law, Gart shall cause to be paid to each person receiving a certificate representing such shares of Gart Common Stock, (a) at the time of such receipt the amount of any dividends or other distributions theretofore paid with respect to the shares of Gart Common Stock represented by such certificate and having a record date on or after the Effective Time, and (b) at the Certificate so surrendered will forthwith be canceledappropriate payment date the amount of any dividends or other distributions payable with respect to the shares of Gart Common Stock represented by such certificate, which dividends or other distributions have a record date on or after the Effective Time and a payment date on or subsequent to such receipt. In no event shall the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, Person entitled to receive such dividends or other distributions be entitled to receive interest on such dividends or other distributions. If payment may is to be issued made to a person Person other than the person in whose name registered holder of the Other Shares represented by the Share Certificate or other instrument so surrendered is registered if in exchange therefor, it shall be a condition to such payment that the Share Certificate is or other instrument so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person Person requesting such issuance pays payment shall pay to the Exchange Agent any transfer or other taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate Other Shares or establishes establish to the satisfaction of FNB the Exchange Agent that such tax has been paid or is not applicablepayable. Until surrendered Gart, the Surviving Corporation or the Exchange Agent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable pursuant to this Agreement to any holder of Company Common Stock such amounts as contemplated Gart, the Surviving Corporation or the Exchange Agent are required to deduct and withhold under the Code or any provision of any applicable Law, with respect to the making of such payment. To the extent that amounts are so withheld by Gart, the Surviving Corporation or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Section 3.1Agreement as having been paid to the holder of the Company Common Stock in respect of whom such deduction and withholding was made by Gart, each Certificate will the Surviving Corporation or the Exchange Agent.
2.3.4. After the Effective Time, there shall be deemed at any time no further transfers on the stock transfer books of the Surviving Corporation of the Other Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Date Time, Share Certificates representing Other Shares are presented to represent only the right to receive upon such surrender Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration that (and any unpaid dividends or distributions) provided for, and in accordance with the holder thereof has the right to receive procedures set forth, in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article 2.
2.3.5. In the event that any Share Certificate or other instrument representing Other Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Share Certificate or other instrument to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such holder 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 Share Certificate or other instrument, the Exchange Agent will issue in exchange for and in lieu of such lost, stolen or destroyed Share Certificate or other instrument representing the Other Shares, the Merger Consideration and any unpaid dividends or distributions payable pursuant to Section 2.3.3.
2.3.6. If any portion of the Exchange Fund deposited with the Exchange Agent for purposes of payment in exchange for Other Shares remains unclaimed six months after the Effective Time, such portion of the Exchange Fund shall be returned to the Surviving Corporation, upon demand, and any such holder who has not surrendered such holder's Share Certificates in compliance with this Article 2 prior to that time shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration and any unpaid dividends or distributions pursuant to Section 2.3.
Appears in 2 contracts
Sources: Merger Agreement (Gart Sports Co), Merger Agreement (Oshmans Sporting Goods Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") Acquiror shall use its reasonable efforts to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose certificate or certificates of Company Preferred Stock or Company Common Stock which immediately prior to the Effective Time represented outstanding shares of SWVA Company Preferred Stock or Company Common Stock were converted into (the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, "Certificates")
(i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will which shall be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreementcustomary form) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Common Stock Merger Consideration or the Preferred Stock Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon as the case may be. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, as specified in such letter of transmittal, together with such letter of transmittal, duly executed, and such other documents Documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will shall be entitled to receive promptly in exchange therefor therefor, as applicable, the Common Stock Merger Consideration that or the Preferred Stock Merger Consideration which such holder has the right to receive in respect of such Certificate together with any dividends or other distributions to which such holder is entitled pursuant to the provisions Section 2.02(c) and cash in lieu of Article 2, and the Certificate fractional shares of Acquiror Series A Preferred Stock or XM Class A Stock to which such holder is entitled pursuant to Section 2.02(e). The Certificates so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are shares of Company Preferred Stock or Company Common Stock which is not registered in the transfer records of SWVAthe Company, the proper Common Stock Merger Consideration or the proper Preferred Stock Merger Consideration, as the case may be, payment may be issued and the proper amount of cash may be paid pursuant hereto to a person other than transferee if the person in whose name the Certificate so surrendered is registered if Certificates representing such Certificate is shares of Company Preferred Stock or Company Common Stock, properly endorsed or otherwise in proper form for transfer, are presented to the Exchange Agent, accompanied by all Documents required to evidence and effect such transfer and the person requesting such issuance pays by evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.12.02, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Common Stock Merger Consideration that or the Preferred Stock Merger Consideration, as the case may be, together with any dividends or other distributions to which such holder thereof has the right to receive in respect of such Certificate is entitled pursuant to the provisions Section 2.02(c) and cash in lieu of Article 2any fractional shares of Acquiror Series A Preferred Stock or XM Class A Stock to which such holder is entitled pursuant to Section 2.02(e). No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 2.01(b)(i)(B), Section 2.02(c) or Section 2.02(e).
Appears in 2 contracts
Sources: Merger Agreement (Motient Corp), Merger Agreement (Rare Medium Group Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, As promptly as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, and in any event within five business days thereafter, Parent shall cause the Exchange Agent will to mail to each holder of record of a Certificate, shares of Company Common Stock whose shares of SWVA Company Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 2.01(a)(i): (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and which shall have such other provisions as Parent and the Exchange Agent Company may specify consistent with this Agreementagree) and (ii) instructions for use in effecting the surrender of surrendering the Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for cash comprising the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Book-Entry Share or a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed, and and/or such other documents as may be reasonably be required by the Exchange Agent, the holder of such Book-Entry Share or Certificate will shall be entitled to receive in exchange therefor a check for the Merger Consideration that such holder has the right is entitled to receive pursuant to the provisions of this Article 2II, and the Book-Entry Share or Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares shares of Company Common Stock that are is not registered in the transfer records of SWVAthe Company, as a check for the case may be, payment may proper amount of cash comprising the Merger Consideration shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if registered, if, upon presentation to the Exchange Agent, such Certificate is shall be properly endorsed or otherwise be in proper form for transfer and transfer. In such case, the person requesting such issuance pays amount of any stock transfer or other taxes required by reason similar Taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer to such other person shall be deducted from the amount otherwise payable pursuant to the immediately preceding sentence, unless evidence satisfactory to the Exchange Agent of the payment to a person other than the registered holder of such Certificate Taxes, or establishes to the satisfaction of FNB that such tax has been paid or exemption therefrom, is not applicablesubmitted. Until surrendered as contemplated by this Section 3.12.02(b), each Book-Entry Share and Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Consideration. No interest will be paid or will accrue for the benefit of holders of shares of Company Common Stock on any cash the Merger Consideration payable to holders of Certificates Company Common Stock pursuant to the provisions of this Article 2II.
Appears in 2 contracts
Sources: Merger Agreement (Hertz Global Holdings Inc), Merger Agreement (Dollar Thrifty Automotive Group Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime (but in any event within five (5) business days thereafter), the Exchange Paying Agent will shall mail to each holder of record of (x) a Certificate, whose certificate or certificates that immediately prior to the Effective Time represented Shares (the “Certificates”) and (y) any non-certificated shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Electionheld by book-entry (“Book-Entry Shares”), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent and will shall be in such a form and have such other provisions as Parent and the Exchange Agent Company may reasonably specify consistent with this Agreementprior to the Effective Time) and (ii) instructions for use in effecting the surrender of the Certificates and Book-Entry Shares in exchange for the Per Share Merger Consideration.
(iii) With respect to properly made elections Consideration as provided in Section 4.1(a). Exchange of any Book-Entry Shares shall be effected in accordance with Section 3.1(i), and upon the Paying Agent’s customary procedures with respect to securities represented by book-entry. Upon surrender in accordance with Section 3.1(ii) of a Certificate or Book-Entry Share for cancellation to the Exchange Paying Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will or Book-Entry Shares shall be entitled to receive in exchange therefor a cash amount in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 4.2(g)) equal to (x) the number of Shares surrendered multiplied by (y) the Per Share Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2Consideration, and the Certificate or Book-Entry Shares so surrendered will shall forthwith be canceledcancelled. Parent shall cause the Paying Agent to make all payments required pursuant to the preceding sentence as soon as practicable following the valid surrender of Certificates or Book-Entry Shares. The foregoing notwithstanding, a letter of transmittal need not be sent to and completed by holders of Book-Entry Shares unless such a practice is customary for the Paying Agent. In such event, payment of the Per Share Merger Consideration shall be made promptly following the Effective Time and without completion of a letter of transmittal. In the event of a transfer of ownership of Shares that are is not registered in the transfer records of SWVA, as the case may beCompany, payment may be issued made to a person Person other than the person Person in whose name the Certificate so surrendered is registered registered, if such Certificate is shall be properly endorsed in a form reasonably acceptable to the Paying Agent or otherwise be in proper form for transfer reasonably acceptable to the Paying Agent and the person Person requesting such issuance pays payment shall pay any transfer or other taxes required by reason of such the payment to a person Person other than the registered holder of such Certificate or establishes establish to the satisfaction of FNB the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, 4.2(b) each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Section 4.1(a). No interest will be paid or will accrue on any the cash payable to holders upon the surrender of any Certificate or Book-Entry Shares. All Per Share Merger Consideration paid upon the surrender of Certificates pursuant or Book-Entry Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the provisions of Article 2Shares formerly represented by such Certificate or Book-Entry Shares.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Exchange Procedures. Each holder of record of shares of First ▇▇▇▇▇▇▇ Common Stock (“Holder”) shall have the right, subject to the limitations set forth in this Article II, to exchange First ▇▇▇▇▇▇▇ Common Stock for Merger Consideration in accordance with the following procedures:
(a) If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name a certificates of the shares of First ▇▇▇▇▇▇▇ Common Stock (the “First ▇▇▇▇▇▇▇ Stock Certificates”) so surrendered is registered, it shall be a condition to such payment that such First ▇▇▇▇▇▇▇ Stock Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such payment to a Person other than the registered holder of such First ▇▇▇▇▇▇▇ Stock Certificate, or establish to the reasonable satisfaction of the Exchange Agent that such Tax has been paid or is not payable. The Exchange Agent (or, subsequent to the six-month anniversary of the Effective Time, Tower) shall be entitled to deduct and withhold from the Merger Consideration (including cash in lieu of fractional shares of Tower Common Stock) otherwise payable pursuant to this Agreement to any holder of First ▇▇▇▇▇▇▇ Common Stock such amounts as the Exchange Agent or Tower, as the case may be, is required to deduct and withhold under the Code, or any provision of state, local or foreign Tax law, with respect to the making of such payment. To the extent the amounts are so withheld by the Exchange Agent or Tower, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of First ▇▇▇▇▇▇▇ Common Stock in respect of whom such deduction and withholding was made by the Exchange Agent or Tower, as the case may be.
(b) After the Effective Time there shall be no further registration or transfers of shares of First ▇▇▇▇▇▇▇ Common Stock. If, after the Effective Time, First ▇▇▇▇▇▇▇ Stock Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration in accordance with the procedures set forth in this Article II.
(c) At any time following the one-year anniversary of the Effective Time, Tower shall be entitled to require the Exchange Agent to deliver to it any remaining portion of the Merger Consideration not distributed to Holders of shares of First ▇▇▇▇▇▇▇ Common Stock that was deposited with the Exchange Agent at the Effective Time (the “Exchange Fund”) (including any interest received with respect thereto and other income resulting from investments by the Exchange Agent, as directed by Tower), and Holders shall be entitled to look only to Tower (subject to abandoned property, escheat or other similar laws) with respect to the Merger Consideration, any cash in lieu of fractional shares of Tower Common Stock and any dividends or other distributions with respect to Tower Common Stock payable upon due surrender of their First ▇▇▇▇▇▇▇ Stock Certificates, without any interest thereon. Notwithstanding the foregoing, neither Tower nor the Exchange Agent shall be liable to any Holder of a First ▇▇▇▇▇▇▇ Stock Certificate for Merger Consideration (or dividends or distributions with respect thereto) or cash from the Exchange Fund in each case delivered to a public official pursuant to any applicable abandoned property, escheat or similar Laws.
(d) In the event any First ▇▇▇▇▇▇▇ Stock Certificates shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such First ▇▇▇▇▇▇▇ Stock Certificate(s) to be lost, stolen or destroyed and, if required by Tower or the Exchange Agent, the posting by such Person of a bond in such sum as Tower may reasonably direct as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such First ▇▇▇▇▇▇▇ Stock Certificate(s), Tower shall cause the Exchange Agent to issue the Merger Consideration deliverable in respect of the shares of First ▇▇▇▇▇▇▇ Common Stock represented by such lost, stolen or destroyed First ▇▇▇▇▇▇▇ Stock Certificates.
(e) No dividends or other distributions with respect to Tower Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered First ▇▇▇▇▇▇▇ Stock Certificate with respect to the shares of Tower Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to subsection (f) below, and all such dividends, other distributions and cash in lieu of fractional shares of Tower Common Stock shall be paid by Tower to the Exchange Agent and shall be included in the Exchange Fund, in each case until the surrender of such First ▇▇▇▇▇▇▇ Stock Certificate in accordance with subsection (f) below. Subject to the effect of applicable abandoned property, escheat or similar Laws, following surrender of any such First ▇▇▇▇▇▇▇ Stock Certificate there shall be paid to the Holder of a certificate for Tower Common Stock (a “Tower Stock Certificate”) representing whole shares of Tower Common Stock issued in exchange therefor, without interest, (i) Not more than 45 days nor fewer than 30 days at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of Tower Common Stock and the amount of any cash payable in lieu of a fractional share of Tower Common Stock to which such Holder is entitled pursuant to subsection (f), and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and with a payment date subsequent to such surrender payable with respect to such whole shares of Tower Common Stock. Tower shall make available to the Exchange Agent cash for these purposes, if necessary.
(f) No Tower Stock Certificates representing fractional shares of Tower Common Stock shall be issued upon the surrender for exchange of First ▇▇▇▇▇▇▇ Stock Certificates; no dividend or distribution by Tower shall relate to such fractional share interests; and such fractional share interests will not entitle the owner thereof to vote or to any rights as a shareholder of Tower. In lieu of any such fractional shares, each Holder of a First ▇▇▇▇▇▇▇ Stock Certificate who would otherwise have been entitled to receive a fractional share interest in exchange for such First ▇▇▇▇▇▇▇ Stock Certificate shall receive from the Exchange Agent an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such Holder (after taking into account all shares of First ▇▇▇▇▇▇▇ Common Stock held by such holder at the Effective Time) would otherwise be entitled by (B) the Closing Tower Share Value.
(g) Tower, in the exercise of its reasonable discretion, shall have the right to make all determinations, not inconsistent with the terms of this Agreement, governing (A) the compliance by any First ▇▇▇▇▇▇▇ Shareholder with the exchange procedures set forth herein, (B) the issuance and delivery of Tower Stock Certificates into which shares of First ▇▇▇▇▇▇▇ Common Stock are converted in the Merger and (C) the method of payment of cash in lieu of fractional shares of Tower Common Stock where the holder of the applicable First ▇▇▇▇▇▇▇ Stock Certificate has no right to receive whole shares of Tower Common Stock.
(h) Prior to the Effective Time, Tower will deposit with the Exchange Agent certificates representing shares of Tower Common Stock sufficient to pay in a timely manner, and Tower shall instruct the Exchange Agent to timely pay, the aggregate Merger Consideration. In addition, prior to the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Tower shall enter into a written agreement deposit with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts sufficient cash to make permit prompt payment of the Form cash in lieu of Election available to the persons who become shareholders fractional shares of SWVA during the period between such record date Tower Common Stock, and the Effective Date. Any election to receive Merger Consideration will have been properly made only if Tower shall instruct the Exchange Agent shall have received on to timely pay the fifth business day immediately preceding cash in lieu of fractional shares of Tower Common Stock where the Effective Date (holder of the "Election Deadline"), a Form applicable First ▇▇▇▇▇▇▇ Stock Certificate has no right to receive whole shares of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentTower Common Stock.
(iii) As soon as reasonably practicable after the Effective DateTime, Tower shall cause the Exchange Agent will to mail to each holder of record of a Certificate, First ▇▇▇▇▇▇▇ Stock Certificate(s) which immediately prior to the Effective Time represented outstanding shares of First ▇▇▇▇▇▇▇ Common Stock whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 1.4 and those who failed any cash in lieu of fractional shares of Tower Common Stock to return a properly completed Form of Electionbe issued or paid in consideration therefor, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will First ▇▇▇▇▇▇▇ Stock Certificate(s) shall pass, only upon delivery of the Certificates First ▇▇▇▇▇▇▇ Stock Certificate(s) (or affidavits of loss in lieu of such certificates)) (the “Letter of Transmittal”) to the Exchange Agent and will shall be substantially in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) shall be determined by Tower and (ii) instructions for use in effecting surrendering the surrender of the Certificates First ▇▇▇▇▇▇▇ Stock Certificate(s) in exchange for the Merger Consideration.
(iii) With respect Consideration and any cash in lieu of fractional shares of Tower Common Stock to properly made elections be issued or paid in consideration therefor upon surrender of such certificate in accordance with Section 3.1(i2.2(f) and any dividends or distributions to which such holder is entitled pursuant to Section 2.2(e), and upon .
(j) Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of its First ▇▇▇▇▇▇▇ Stock Certificate(s), together with such letter accompanied by a properly completed Letter of transmittalTransmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder a Holder of such Certificate First ▇▇▇▇▇▇▇ Common Stock will be entitled to receive in exchange therefor promptly after the Effective Time the Merger Consideration that such holder has in respect of the right to receive pursuant to the provisions shares of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required First ▇▇▇▇▇▇▇ Common Stock represented by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicableits First ▇▇▇▇▇▇▇ Stock Certificate. Until surrendered as contemplated by this Section 3.1so surrendered, each such First ▇▇▇▇▇▇▇ Stock Certificate will be deemed at any time shall represent after the Effective Date to represent Time, for all purposes, only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right and any cash in lieu of fractional shares of Tower Common Stock to receive be issued or paid in respect consideration therefor upon surrender of such Certificate certificate in accordance with Section 2.2(f) and any dividends or distributions to which such holder is entitled pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 2.2(e).
Appears in 2 contracts
Sources: Merger Agreement (First Chester County Corp), Merger Agreement (First Chester County Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will Buyer or Paying Agent, as applicable, shall mail or otherwise deliver to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Certificate or Book-Entry Share (iA) a letter of transmittal substantially in the form attached hereto as Exhibit B (which will specify that delivery will be effectedthe “Letter of Transmittal”), and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (iiB) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the applicable portion of Merger Consideration.
(iii) With respect Consideration pursuant to properly made elections in accordance with Section 3.1(i)2.8, and upon surrender in accordance with Section 3.1(ii(C) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such any other customary documents as may reasonably be required by pursuant to such instructions.
(ii) Buyer shall, or shall cause the Exchange AgentPaying Agent to, no later than the later of the Closing Date or three (3) Business Days after receipt of a Certificate or Book-Entry Share, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that the Paying Agent may reasonably require in connection therewith, (A) pay to the holder of such Certificate will be entitled to receive in exchange therefor or Book-Entry Share the applicable portion of Cash Merger Consideration that such holder has the right to receive pursuant in accordance with Sections 2.8 and 2.12(a) and (B) issue to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes Book-Entry Share the applicable portion of the Stock Merger Consideration in accordance with to Section 2.8, in each case, with respect to such Certificate or Book-Entry Share so surrendered and the Certificate or Book-Entry Share shall forthwith be cancelled.
(iii) No interest shall be paid or shall accrue on any Merger Consideration payable upon surrender of any Certificate or Book-Entry Share. Until so surrendered, each outstanding Certificate or Book-Entry Share that prior to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will Effective Time represented Company Common Shares (other than Dissenting Shares) shall be deemed at any time from and after the Effective Date Time, for all purposes, to represent only evidence the right to receive upon such surrender the portion of the Merger Consideration that the holder thereof has the right to receive as provided in respect of such Section 2.8. If any Certificate pursuant or Book-Entry Share is presented to the provisions of Article 2. No interest will Paying Agent after the Effective Time, it shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2cancelled and exchanged as provided in this Section 2.13(e).
Appears in 2 contracts
Sources: Merger Agreement (Snap Interactive, Inc), Merger Agreement (LiveXLive Media, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, As promptly as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, and in any event not later than the fifth Business Day after the Effective Time, Parent will cause the Exchange Agent will to send by mail (and make available for collection by hand if so elected by the surrendering holder) to each Person who was, at the Effective Time, a holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right No Election Shares entitled to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 1.6: (i) a letter of transmittal (which will be in customary form and will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent); (ii) a Certificate of Ownership; and (iiiii) instructions for use in effecting the surrender of No Election Shares pursuant to such letter of transmittal. Upon surrender to the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) Exchange Agent of a Certificate or Book-Entry Company Share for cancellation (including pursuant to the Exchange AgentSection 1.6), together with such letter of transmittaltransmittal and Certificate of Ownership, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate or Book-Entry Company Share will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to Section 1.6 to be mailed (or made available for collection by hand if so elected by the provisions surrendering holder) as promptly as possible and in any event no later than three Business Days following the later to occur of Article 2(i) the Effective Time, or (ii) the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or Book-Entry Company Share, and the Certificate or Book-Entry Company Share, so surrendered will forthwith be canceledcancelled. In the event of a transfer of ownership of Shares the Certificate or Book-Entry Company Share that are is not registered in the transfer records of SWVAthe Company, as the case may be, payment such shares and cash may be issued to a person other than the person in whose name transferee if the Certificate so surrendered representing such shares is registered if presented to the Exchange Agent, accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays by evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.12.2, each Certificate No Election Share will be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the to be received by such holder, cash in lieu of any fractional Parent Shares to which such holder thereof has the right to receive in respect of such Certificate is entitled pursuant to the provisions of Article 2. No interest will be paid Section 2.5, and any dividends or will accrue on any cash payable other distributions to holders of Certificates which such holder is entitled pursuant to the provisions of Article 2Section 2.3.
Appears in 2 contracts
Sources: Merger Agreement (Citadel Broadcasting Corp), Merger Agreement (Cumulus Media Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Purchaser and the Surviving Corporation will cause the Exchange Agent will mail to send to each holder of record of a Certificate, the Company Certificates whose shares of SWVA Common Stock were converted pursuant to Section 2.6 into the right to receive the Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will shall pass, only upon delivery of the Company Certificates to the Exchange Agent and will shall be in such form and have such other provisions as the Purchaser and the Surviving Corporation and the Exchange Agent may specify consistent with this Agreementshall reasonably specify) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Company Certificate will shall be entitled to receive in exchange therefor a check in the amount (after giving effect to any required tax withholding) of the Merger Consideration that such the holder has the right is entitled to receive pursuant to the provisions of Article 2under Section 2.6, and the Company Certificate so surrendered will forthwith shall immediately be canceled. No interest will be paid or accrued with respect to any Merger Consideration deliverable upon due surrender of the Company Certificates. In the event of a transfer of ownership of Shares the Company Common Stock that are is not registered in the transfer records of SWVA, as the case may beCompany, payment may be issued made to a person other than transferee if, and only if, the person in whose name Company Certificate representing such Company Common Stock is presented to the Certificate so surrendered is registered if Exchange Agent, accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays by evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.12.8, each Company Certificate will (other than the Company Certificates representing Dissenting Shares) shall be deemed at any time after the Effective Date Time for all purposes to represent only the right to receive upon such surrender the Merger Consideration that which the holder thereof has the right to receive in respect of such Company Certificate pursuant to this Article II. In the provisions case of Article 2. No interest will the Company Certificates representing Dissenting Shares, each Company Certificate representing Dissenting Shares shall be paid or will accrue on deemed at any cash payable time after the Effective Time for all purposes to holders represent only the right to receive the fair value of Certificates such Dissenting Shares pursuant to the provisions of Article 2DGCL.
Appears in 2 contracts
Sources: Merger Agreement (180 Connect Inc.), Merger Agreement (Variflex Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, instruct the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificatecertificates or instruments evidencing the Company Common Stock, whose shares of SWVA Common Stock Company Series A Preferred Stock, and, in Parent’s discretion, Company Options, that were outstanding immediately prior to the Effective Time (collectively, the “Certificates”) and which were converted into the right to receive the applicable portion of the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.6, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent Agent, and will shall be in such form and have such other provisions as Parent and/or the Exchange Agent may specify consistent with this Agreement) reasonably specify), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the applicable portion of the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by Parent or the Exchange AgentAgent (including any required IRS Form W-9 or Form W-8), the holder holders of such Certificate will Certificates shall be entitled to receive in exchange therefor a check or wire transfer in the amount of U.S. dollars representing the applicable portion of the Merger Consideration that such holder has holders have the right to receive pursuant to the provisions of Article 2Section 2.6, and the Certificate Certificates so surrendered will shall forthwith be canceledcancelled. Until so surrendered, outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes, to evidence only the right to receive upon surrender thereof the applicable portion of the Merger Consideration that the holders thereof have the right to receive pursuant to Section 2.6. No interest will be paid or accrued on any cash payable to holders of Certificates pursuant to this Agreement. In the event of a transfer of ownership of Shares shares of Company Common Stock or Company Series A Preferred Stock or Company Options (if applicable) that are is not registered in the transfer records of SWVAthe Company, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason applicable portion of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to Section 2.6 may paid to a transferee if the provisions Certificate representing such shares of Article 2. No interest will be paid Company Common Stock, Company Series A Preferred Stock or will accrue on any cash payable to holders of Certificates pursuant Company Options (if applicable) is presented to the provisions of Article 2Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Secure Computing Corp), Merger Agreement (McAfee, Inc.)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to At and after the Effective DateTime, First Nationaleach certificate (each a "Certificate") previously representing shares of Seller Common Stock (except as specifically set forth in Section 1.03) shall represent only the right to receive the Merger Consideration.
(b) As of the Effective Time, Purchaser shall deposit, or shall cause to be deposited with a bank or trust company selected by Purchaser to act as the exchange agent (the "Exchange Paying Agent"), will mail a form ) pursuant to the terms of election an agreement (the "Form of ElectionPaying Agent Agreement") in form and substance reasonably satisfactory to each shareholder Purchaser and Seller, for the benefit of record the holders of SWVA as shares of a record date as close as practicable Seller Common Stock, for exchange in accordance with this Section 1.04, an amount of cash sufficient to pay the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive aggregate Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior paid pursuant to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentSection 1.03.
(iic) As soon as reasonably practicable after the Effective DateTime, but no later than ten (10) business days after the Exchange Effective Time, Purchaser shall cause the Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Certificate or Certificates the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, following (i) a letter of transmittal (which will specify specifying that delivery will shall be effected, and risk of loss and title to the Certificates will pass, only upon the delivery and surrender of the Certificates to the Exchange Agent and will Paying Agent, which shall be in such a form and have such contain any other provisions as the Exchange Agent Purchaser may specify consistent with this Agreement) reasonably determine; and (ii) instructions for use in effecting the delivery and surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i). On the Effective Date, each stockholder of Seller that upon proper delivery and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation or Certificates to the Exchange Paying Agent, together with such a properly completed and duly executed letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor therefore a check in an amount equal to the product of the Merger Consideration that such holder has and the right to receive number of shares of Seller Common Stock represented by the Certificate or Certificates delivered and surrendered pursuant to the provisions of Article 2hereof, and the Certificate or Certificates so surrendered will shall forthwith be canceled. If all required documentation for a stockholder is received by the Paying Agent within one hundred twenty (120) days after the Effective Time, Purchaser shall direct the Paying Agent to make payment of the Merger Consideration to such stockholder, with respect to the Certificates so delivered and surrendered, within five (5) business days of the receipt of such documentation. If all required documentation for a stockholder is received by the Paying Agent later than one hundred twenty (120) days after the Effective Time, Purchaser shall direct the Paying Agent to make payment of the Merger Consideration to such stockholder, with respect to the Certificates so delivered and surrendered, within twenty (20) business days after receipt of such documentation. No interest will be paid or accrued on the Merger Consideration. In the event of a transfer of ownership of Shares that are any shares of Seller Common Stock not registered in the transfer records of SWVASeller prior to the Effective Date, as a check for the case may be, payment Merger Consideration may be issued to a person other than the person in whose name transferee if the Certificate so surrendered representing such Seller Common Stock is registered if presented to the Paying Agent, accompanied by documents sufficient, in the reasonable discretion of Purchaser and the Paying Agent, (i) to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any (ii) to evidence that all applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time paid.
(d) From and after the Effective Date Time, there shall be no transfers on the stock transfer records of Seller of any shares of Seller Common Stock that were outstanding immediately prior to represent only the right Effective Time. If after the Effective Time Certificates are presented to receive upon such surrender Purchaser or the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in this Section 1.04.
(e) Any portion of the aggregate Merger Consideration or the proceeds of any investments thereof that remains unclaimed by the holder thereof has stockholders of Seller for twelve (12) months after the right Effective Time shall be repaid by the Paying Agent to receive Purchaser. Any stockholders of Seller who have not theretofore complied with this Section 1.04 shall thereafter look only to Purchaser for payment of the Merger Consideration deliverable in respect of each share of Seller Common Stock such stockholder holds as determined pursuant to this Agreement without any interest thereon. If outstanding Certificates for shares of Seller Common Stock are not delivered and surrendered or the payment for them is not claimed prior to the date on which such payments would otherwise escheat to or become the property of any governmental unit or agency, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable law, become the property of Purchaser (and to the extent not in its possession shall be paid over to it), free and clear of all claims or interest of any person previously entitled to such claims. Notwithstanding the foregoing, none of Purchaser, the Surviving Corporation, the Paying Agent or any other person shall be liable to any former holder of Seller Common Stock for any amount delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) 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 the Paying Agent, the posting by such person of a bond in such amount as the Paying Agent may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Atlantic Bank of New York), Merger Agreement (Yonkers Financial Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as Parent and the Company shall cause the exchange agent selected by Parent (the "Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose certificate which represented shares of SWVA Company Common Stock were converted into immediately prior to the right to receive Merger Consideration Effective Time (the "Certificates") appropriate transmittal materials and those who failed to return a properly completed Form of Election, (i) a letter of transmittal instructions (which will shall specify that delivery will shall be effected, and risk of loss and title to the such Certificates will shall pass, only upon proper delivery of the such Certificates to the Exchange Agent and will Agent). The Certificates of Company Common Stock so delivered shall be in such form and have such other provisions duly endorsed as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceledrequire. In the event of a transfer of ownership of Shares shares of Company Common Stock represented by Certificates that are not registered in the transfer records of SWVAthe Company, as the case may be, payment consideration provided in Section 3.1 may be issued to a person transferee if the Certificates representing such shares are delivered to the Exchange Agent, accompanied by all documents required to evidence such transfer and by evidence satisfactory to the Exchange Agent that any applicable stock transfer taxes have been paid. If any Certificate shall have been lost, stolen, mislaid or destroyed, upon receipt of (a) an affidavit of that fact from the holder claiming such Certificate to be lost, mislaid, stolen or destroyed, (b) such bond, security or indemnity as Parent and the Exchange Agent may reasonably require and (c) any other documents reasonably necessary to evidence and effect the bona fide exchange thereof, the Exchange Agent shall issue to such holder the consideration into which the shares represented by such lost, stolen, mislaid or destroyed Certificate shall have been converted. The Exchange Agent may establish such other reasonable and customary rules and procedures in connection with its duties as it may deem appropriate. After the Effective Time, each holder of shares of Company Common Stock (other than shares to be canceled pursuant to Section 3.2 or as to which statutory appraisal rights have been perfected, and not withdrawn or lost, as provided in Section 3.3) issued and outstanding at the person in whose name Effective Time shall surrender the Certificate so surrendered is registered if Certificates representing such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes shares to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Exchange Agent and shall promptly upon surrender thereof receive in exchange therefor the consideration provided in Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive together with all undelivered dividends or distributions in respect of such Certificate shares (without interest thereon) pursuant to Section 4.2, less any withholding of Taxes as may be required by applicable Law. Parent shall not be obligated to deliver the provisions consideration to which any former holder of Article 2Company Common Stock is entitled as a result of the Merger until such holder surrenders such holder's Certificates for exchange as provided in this Section 4.1. No interest will Any other provision of this Agreement notwithstanding, neither Parent, the Surviving Corporation nor the Exchange Agent shall be liable to a holder of Company Common Stock for any amounts paid or will accrue on any cash payable property delivered in good faith to holders of Certificates a public official pursuant to any applicable abandoned property, escheat or similar Law. Adoption of this Agreement by the provisions stockholders of Article 2the Company shall constitute ratification of the appointment of the Exchange Agent.
Appears in 2 contracts
Sources: Merger Agreement (Fortis Inc /Nv/), Agreement and Plan of Merger (Alden John Financial Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Time and in any event not later than the second Business Day following the Closing Date, Parent shall cause the Exchange Agent will mail to mail, and Parent shall and shall cause the Exchange Agent to make otherwise available, to each holder of record of one or more Company Common Units as of immediately prior to the Effective Time, a Certificate, whose shares form of SWVA letter of transmittal to be used to effect the exchange of such Company Common Stock were converted into Units for the right to receive Merger Consideration payable in respect thereof and those who failed any dividends or distributions payable pursuant to return a properly completed Form Section 2.2(c), along with instructions for using such letter of Election, (i) a transmittal to effect such exchange. The letter of transmittal (which will or the instructions thereto) shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Company Common Units shall pass, only upon delivery thereof together with (A) delivery of the Certificates corresponding Company Certificate to the Exchange Agent and will or (B) receipt by the Exchange Agent of an “agent’s message” with respect to Book Entry Units. Such letter of transmittal shall be in such customary form and have such other provisions as Parent and Company may reasonably agree prior to the Effective Time.
(ii) Upon surrender to the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Company Certificate for cancellation to cancellation, together with a duly completed and executed letter of transmittal and any other documents reasonably required by Parent or the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required or receipt by the Exchange AgentAgent of an “agent’s message” with respect to Book Entry Units, (A) the holder of such Certificate will Company Common Units shall be entitled to receive in exchange therefor an uncertificated Parent Share book-entry representing the Merger Consideration number of whole Parent Shares that such holder has the right to receive pursuant to Section 2.1(b) and Section 2.2(e) (along with any unpaid dividends and distributions with respect to such Parent Shares as provided in Section 2.2(c)); and (B) the provisions of Article 2, and Company Certificate or Book Entry Units represented by the Certificate “agent’s message” so surrendered will shall forthwith be canceledcancelled. No interest shall be paid or accrued on any Merger Consideration or unpaid dividends and distributions, if any, payable to holders of Company Common Units.
(iii) In the event of a transfer of ownership of Shares Company Common Units that are is not registered in the transfer records of SWVAthe Company, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive payable in respect of such Company Common Units (along with any unpaid dividends and distributions with respect to such Parent Shares as provided in Section 2.2(c)) may be paid to a transferee if the Company Certificate pursuant representing such Company Common Units is presented to the provisions of Article 2. No interest will be paid Exchange Agent accompanied by all documents required to evidence and effect such transfer, including such signature guarantees as Parent or will accrue on the Exchange Agent may reasonably request, and to evidence that any cash payable to holders of Certificates pursuant to the provisions of Article 2applicable unit transfer taxes have been paid.
Appears in 2 contracts
Sources: Merger Agreement (Transocean Ltd.), Agreement and Plan of Merger (Transocean Partners LLC)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, As promptly as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime and in no event later than three (3) Business Days following the Effective Time, the Parent shall, and shall cause the Surviving Company to, cause the Exchange Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock outstanding Company Shares that were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 2.1(a)(i): (iA) a letter of transmittal (“Letter of Transmittal”), in customary form and with such other provisions as reasonably agreed upon by the Company and the Parent prior to the Effective Time, which will specify shall specify, among other things, that delivery will shall be effected, and risk of loss and title to Company Shares represented by certificate (“Certificates”) or Company Shares registered in the Certificates will transfer books of the Company in book-entry (“Book-Entry Shares”) shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of any Book-Entry Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Agent; and (iiB) instructions for use in effecting the surrender of the Certificates or the transfer of Book-Entry Shares in exchange for the Merger Consideration.
(iiiii) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon (A) surrender in accordance with Section 3.1(ii) of a Certificate for cancellation (or affidavit of loss in lieu thereof) or transfer of any Book-Entry Share to the Exchange Agent, together with a properly completed and validly executed Letter of Transmittal or (B) receipt of an “agent’s message” by the Exchange Agent (or such letter other evidence, if any, of transmittal, duly executedtransfer as the Exchange Agent may reasonably request) in the case of transfer of a Book-Entry Share, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Company Share formerly represented by such Certificate or Book-Entry Share pursuant to the provisions of this ARTICLE II plus any Fractional Share Consideration that such holder has the right to receive pursuant to the provisions of Article 2Section 2.1(a)(ii) and any amounts that such holder has the right to receive in respect of dividends or distributions to which holders of Company Shares may be entitled pursuant to Section 2.2(e), by mail or by wire transfer after the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or “agent’s message” or other evidence, and the Certificate (or affidavit of loss in lieu thereof) so surrendered will or the Book-Entry Share so transferred, as applicable, shall be forthwith cancelled. The Exchange Agent shall accept such Certificates (or affidavits of loss in lieu thereof) and Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Until surrendered or transferred as contemplated by this Section 2.2, each Certificate and Book-Entry Share shall be canceleddeemed, at any time after the Effective Time, to represent only the right to receive, upon such surrender, the Merger Consideration as contemplated by this ARTICLE II. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on the Merger Consideration or the Fractional Share Consideration payable upon the surrender of the Certificates or Book-Entry Shares and any dividends or distributions to which such holder may be entitled pursuant to Section 2.2(e).
(iii) In the event of a transfer of ownership of Company Shares that are is not registered in the transfer records of SWVAthe Company, as it shall be a condition of payment that any Certificate or Book-Entry Share surrendered or transferred in accordance with the case may be, payment may procedures set forth in this Section 2.2 shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or shall be otherwise in proper form for transfer transfer, and that the person Person requesting such issuance pays payment shall have paid any transfer or Taxes and other taxes Taxes required by reason of such the payment of the Merger Consideration to a person Person other than the registered holder of such the Certificate surrendered, or establishes Book-Entry Share transferred, or shall have established to the reasonable satisfaction of FNB the Parent that such tax Tax either has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (American Realty Capital - Retail Centers of America, Inc.)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime (but in no event later than five (5) Business Days following the Effective Time), Parent shall cause the Exchange Paying Agent will to mail to each individual, partnership, joint venture, corporation, limited liability company, limited liability partnership, trust, unincorporated organization or other entity ("Person") who was at the Effective Time a holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right entitled to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 1.5(a) (i) a letter of transmittal (which will shall be in customary form and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will that formerly evidenced the shares of Company Common Stock shall pass, only upon proper delivery of the such Certificates (or affidavits of loss in lieu thereof) to the Exchange Agent Paying Agent, and will be in such form and which shall have such other customary provisions with respect to delivery of an "agent's message" with respect to shares held in book-entry form as Parent and the Exchange Agent Company may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates pursuant to such letter of transmittal in exchange for the Merger ConsiderationConsideration (which instructions shall provide that, at the election of the surrendering holder, such Certificates (including, as applicable, any book-entry shares) may be surrendered and the Merger Consideration in exchange therefor collected by hand delivery), in each case in form and substance reasonably agreed to by Parent and the Company.
(iiib) With respect Upon (i) surrender to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) the Paying Agent of a Certificate for cancellation to the Exchange Agentcancellation, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto or (ii) receipt of an "agent's message" by the Paying Agent, as applicable, in the case of shares held in book-entry form, and such other documents as may be reasonably be required by the Exchange AgentPaying Agent and reasonably approved by Parent and the Company, the holder of such Certificate will (including, as applicable, book-entry shares) shall be entitled to receive in exchange therefor respect of each share previously represented thereby cash in the amount of the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2Consideration, and the Certificate so surrendered will shall forthwith be canceledcancelled. In No interest will be paid or will accrue on any cash payable pursuant to Sections 1.5(a), 1.6(a), 1.6(b) or 1.7(a) .
(c) If payment of the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may Merger Consideration is to be issued made to a person Person other than the person Person in whose name the surrendered Certificate is registered, it shall be an obligation of payment that (i) the Certificate so surrendered is registered if such Certificate is shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the person Person requesting such issuance pays payment shall have paid any transfer or and other taxes required by reason of such the payment of the Merger Consideration to a person Person other than the registered holder of such Certificate surrendered or establishes shall have established to the reasonable satisfaction of FNB the Paying Agent that such tax either has been paid or is not applicable. payable.
(d) Until surrendered as contemplated by this Section 3.12.2, each Certificate will (including, as applicable, book-entry shares) shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions number of Article 2shares previously represented thereby. No interest will be paid or will accrue on any cash payable to From and after the Effective Time, holders of Certificates pursuant (including, as applicable, book-entry shares) shall cease to have any rights as stockholders of the provisions of Article 2Company, except as provided herein or by applicable Law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China Security & Surveillance Technology, Inc.), Merger Agreement (China Security & Surveillance Technology, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificatecertificates representing shares of Company Common Stock and Company Preferred Stock ("Company Certificates"), whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration Parent Common Stock (and those who failed cash in lieu of fractional shares pursuant to return a properly completed Form of Election, Section 3.04) promptly after the Effective Time: (i) a form letter of transmittal in form and substance satisfactory to Company, such approval not to be unreasonably withheld (which will shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will shall pass, only upon delivery receipt of the Company Certificates to by the Exchange Agent Agent, and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreement) reasonably specify); and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the Merger Consideration.
Parent Certificates (iii) With respect to properly made elections and cash in accordance with Section 3.1(ilieu of any fractional share), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate Company Certificates for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly completed and validly executed, and such other documents as may be reasonably be required by the Exchange Agent, the holder of such Certificate will Company Certificates shall be entitled to receive in exchange therefor a Parent Certificate representing the Merger Consideration number of whole Parent Common Stock that such holder has the right to receive pursuant to this Article III and payment of cash in lieu of any fractional share which such holder has the provisions of Article 2right to receive pursuant to Section 3.04, and the Certificate Company Certificates so surrendered will forthwith shall be canceled. In Until so surrendered, each outstanding Company Certificate that, prior to the event Effective Time, represented shares of a transfer Company Common Stock or Company Preferred Stock will be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the number of ownership full shares of Shares that are not registered in the transfer records Parent Common Stock into which such shares of SWVACompany Common Stock or Company Preferred Stock, as the case may be, payment may be issued to a person other than the person in whose name the Certificate shall have been so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer converted and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender an amount in cash in lieu of the Merger Consideration that the holder thereof has the right to receive issuance of any fractional share in respect accordance with Section 3.04. Notwithstanding any other provision of such Certificate pursuant to the provisions of Article 2. No this Agreement, no interest will be paid or will accrue on any cash payable to holders of Company Certificates pursuant to the provisions of this Article 2III.
Appears in 2 contracts
Sources: Merger Agreement (Mayan Networks Corp/Ca), Merger Agreement (Ariel Corp)
Exchange Procedures. (a) At and after the Effective Time, each certificate (each a "Certificate") previously representing shares of Company Common Stock shall represent only the right to receive the Merger Consideration (without interest on the cash portion thereof).
(b) As of the Effective Time, (i) Not more than 45 days nor fewer than 30 days prior the Acquiror shall deposit, or shall cause to be deposited, with ChaseMellon Shareholder Services, L.L.C., a New Jersey limited liability company (the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form for the benefit of election (the "Form holders of Election") to each shareholder shares of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement Company Common Stock, for exchange in accordance with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionthis Section 1.3, the Exchange Agent will use its best efforts to make amount constituting the Form cash portion of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if to be paid pursuant to Section 1.2, and (ii) the Company shall deposit, or shall cause to be deposited, with the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline")Agent, a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the benefit of the holders of shares of Company Common Stock, one or more certificates representing (x) the Secondary Participation Interests to which such Form be distributed to holders of Election relates, acceptable Company Common Stock in exchange for transfer on their Certificates pursuant to this Section 1.3 and (y) the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may Batched Secondary Participation Interests to be revoked only by written notice received sold by the Exchange Agent prior on behalf of the Company in the Batched Sales pursuant to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentSections 1.2 and 1.3(c).
(iic) As soon as reasonably practicable after the Effective DateTime, the Acquiror shall cause the Exchange Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Certificate or Certificates the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, following: (i) a letter of transmittal (which will specify specifying that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will Agent, which shall be in such a form and have such contain any other reasonable provisions as the Exchange Agent Acquiror may specify consistent with this Agreement) determine; and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect . In addition, as soon as practicable after the Effective Time, the Batched Secondary Participation Interests shall be sold on the open market at prevailing prices by means of the Batched Sales. The Exchange Agent shall be instructed by the Surviving Corporation to properly made elections effect the Batched Sales on behalf of the Surviving Corporation, through the use of one or more broker-dealers, over a period of time following the Effective Time and in accordance with Section 3.1(i), and upon a manner designed not to adversely affect the market prices of the Secondary Participation Interests. Upon the proper surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such a properly completed and duly executed letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor a check representing the cash portion of the Merger Consideration that and a certificate representing such number of Secondary Participation Interests which such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of Article 2hereof, and the Certificate so surrendered will shall forthwith be canceledcancelled. No interest will be paid or accrued on the cash portion of the Merger Consideration. In the event of a transfer of ownership of Shares that are any shares of Company Common Stock not registered in the transfer records of SWVAthe Company, as a check for the case may be, payment cash portion of the Merger Consideration and a certificate representing the applicable number of Secondary Participation Interests may be issued to a person other than the person in whose name transferee if the Certificate so surrendered representing such Company Common Stock is registered if presented to the Exchange Agent, accompanied by documents sufficient, in the reasonable discretion of the Acquiror and the Exchange Agent, (i) to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any (ii) to evidence that all applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time paid.
(d) From and after the Effective Date Time, there shall be no transfers on the stock transfer records of the Company of any shares of Company Common Stock that were outstanding immediately prior to represent only the right Effective Time. If, after the Effective Time, Certificates are presented to receive upon such surrender the Acquiror or the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration deliverable in respect thereof pursuant to this Plan in accordance with the procedures set forth in this Section 1.3.
(e) Any portion of the aggregate Merger Consideration or the proceeds of any investments thereof that remains unclaimed by the holder thereof has stockholders of the right Company for one year after the Effective Time shall be repaid or delivered, as applicable, by the Exchange Agent to receive the Acquiror. Any stockholders of the Company who have not theretofore complied with this Section 1.3 shall thereafter look only to the Acquiror for payment of their Merger Consideration deliverable in respect of each share of Company Common Stock such stockholder holds as determined pursuant to this Plan without any interest on the cash portion of the Merger Consideration. If outstanding Certificates are not surrendered or the payment for them not claimed prior to the date on which such payments would otherwise escheat to or become the property of any governmental unit or agency, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable law, become the property of the Acquiror (and to the extent not in its possession shall be paid over to it), free and clear of all claims or interest of any person previously entitled to such claims. Notwithstanding the foregoing, none of the Acquiror, the Surviving Corporation, the Exchange Agent or any other person shall be liable to any former holder of Company Common Stock for any amount delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) 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 the Exchange Agent, the posting by such person of a bond in such amount as the Exchange Agent may reasonably 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 Merger Consideration deliverable in respect thereof pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2this Plan.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (First Nationwide Holdings Inc), Agreement and Plan of Merger (First Nationwide Parent Holdings Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date Newco and the Effective Date. Any election Surviving Corporation shall cause the Payment Agent to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares Shares as of SWVA Common Stock were converted into immediately prior to the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time: (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of a certificate or certificates (the Certificates “Certificates”) that immediately prior to the Exchange Agent Effective Time represented outstanding Shares (excluding Owned Shares and will be Dissenting Shares) (or effective affidavits of loss in such form lieu thereof) or transfer of non-certificated Shares (excluding Owned Shares and have such other provisions as Dissenting Shares) represented by book entry (“Uncertificated Shares”) to the Exchange Agent may specify consistent with this Agreement) Payment Agent); and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Uncertificated Shares in exchange for the Merger Consideration.
Consideration payable in respect thereof pursuant to the provisions of Article I. Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Shares represented by a Certificate or Uncertificated Share, upon (iiix) With respect surrender to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) the Payment Agent of a Certificate for cancellation to the Exchange AgentCertificate, together with such a duly completed and validly executed letter of transmittal, duly executed, transmittal and such other documents as may reasonably be required requested by the Exchange Payment Agent, or (y) receipt of an “agent’s message” by the holder Payment Agent (or such other evidence, if any, of such Certificate will be entitled to receive transfer as the Payment Agent may reasonably request) in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions case of Article 2, and the Certificate a book-entry transfer of Uncertificated Shares. Until so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAor transferred, as the case may be, payment may be issued to a person other than from and after the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of Effective Time each such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to Uncertificated Share shall represent for all purposes only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive payable in respect of such Certificate thereof pursuant to the provisions of Article 2. I. If Certificates or Uncertificated Shares are presented to the Surviving Corporation after the Effective Time for any reason, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth in Article I. No interest will shall be paid or will accrue accrued on any the cash payable to holders upon the surrender or transfer of Certificates pursuant such Certificate or Uncertificated Share. From and after the Effective Time, there will be no further registration of transfers on the records of the Surviving Corporation of Shares that were issued and outstanding immediately prior to the provisions of Article 2Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Barracuda Networks Inc), Merger Agreement (Riverbed Technology, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable after the Xtribe Merger Effective Time, WinVest shall use commercially reasonable efforts to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right Units entitled to receive a portion of the Aggregate Merger Consideration pursuant to Section 3.01 a letter of transmittal, which shall be in a form reasonably acceptable to WinVest and those who failed to return a properly completed Form the Company (the “Letter of ElectionTransmittal”), and shall specify (i) a letter of transmittal (which will specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates evidencing such Company Common Units (the “Certificates”) shall pass, only upon proper delivery and surrender of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Agent; and (ii) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Xtribe Merger Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
(iii) With respect to properly made elections cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefor, and WinVest shall cause the Exchange Agent to deliver, the portion of Aggregate Merger Consideration that to which such holder has the right to receive pursuant to is entitled in accordance with the provisions of Article 2Section 3.01, and the Certificate Certificates so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.02, each Certificate will entitled to receive the applicable portion of the Aggregate Merger Consideration in accordance with Section 3.01 shall be deemed at any time all times after the Xtribe Merger Effective Date Time to represent only the right to receive upon such surrender of such Certificate the portion of the Aggregate Merger Consideration that the holder thereof has the right of such Certificate is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 3.01.
Appears in 2 contracts
Sources: Business Combination Agreement (WinVest Acquisition Corp.), Business Combination Agreement (WinVest Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime, the Exchange Agent will IPC or its appointed designee shall mail to each holder of record a certificate or certificates of a Certificate, Company Common Stock ("Company Certificates") whose shares of SWVA Common Stock were are converted into the right to receive the Merger Consideration and those who failed to return a properly completed Form of ElectionShares, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will passshall pass to IPC, only upon delivery of the Company Certificates to the Exchange Agent IPC and will which shall be in such form and have such other provisions as the Exchange Agent IPC may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the Merger Consideration.
(iii) With respect Shares and any dividends or other distributions pursuant to properly made elections in accordance with Section 3.1(i2.6(e), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate Company Certificates for cancellation to the Exchange AgentIPC, together with such letter of transmittal, duly executed, completed and such other documents as may reasonably be required by validly executed in accordance with the Exchange Agentinstructions thereto, the holder holders of such Certificate will Company Certificates shall be entitled to receive the Merger Shares in exchange therefor the Merger Consideration that such holder has the right to receive and any dividends or distributions payable pursuant to the provisions of Article 2Section 2.6(e), and the Certificate Company Certificates so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAUntil so surrendered, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate outstanding Company Certificates will be deemed at any time from and after the Effective Date Time, for all corporate purposes, subject to represent only Section 2.8, to evidence the right ownership of the number of full shares of IPC Common Stock into which such shares of the Company Common Stock shall have been so converted and any dividends or distributions payable pursuant to Section 2.6(e). Notwithstanding the foregoing, if any Company Certificate is lost, stolen, destroyed or mutilated, such holder shall provide evidence reasonably satisfactory to IPC as to such loss, theft, destruction or mutilation and an affidavit in form and substance satisfactory to IPC, and, thereupon, such holder shall be entitled to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive Shares in respect of such Certificate exchange therefor and any dividends or distributions payable pursuant to Section 2.6(e), and the provisions of Article 2. No interest will Company Certificates so surrendered shall forthwith be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2canceled.
Appears in 2 contracts
Sources: Merger Agreement (Imedia International Inc), Merger Agreement (Irvine Pacific Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Surviving Corporation shall cause the Paying Agent will to mail (and, if permitted by the Paying Agent, to make available for collection by hand) to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of ElectionCertificate or Certificates, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent and will which shall be in such the form and have such other customary provisions as Parent and the Exchange Agent Surviving Corporation may specify consistent with this Agreementspecify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
cash (iiipursuant to Section 2.7) With respect to properly made elections in accordance with Section 3.1(i), and upon be received by the holder thereof pursuant to this Agreement. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Paying Agent, together with such a letter of transmittal, transmittal duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will shall be entitled to receive promptly 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 of a Certificate; provided, that such holder has payment by hand is permitted by the right to receive pursuant to the provisions Paying Agent) within three (3) Business Days of Article 2receipt thereof, and the Certificate so surrendered will shall be forthwith be canceledcancelled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, The Paying Agent shall accept such Certificates upon compliance with such reasonable terms and conditions as the case Paying Agent may be, payment may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after accrued for the Effective Date to represent only benefit of the right to receive upon such surrender Holders on the Merger Consideration that payable upon the holder thereof has surrender of the right to receive in respect Certificates. At the Effective Time, the stock transfer books of such Certificate pursuant the Company shall be closed, and thereafter there shall be no further registration of transfers of shares of Company Common Stock theretofore outstanding on the records of the Company. If Certificates are presented to the provisions Company for transfer following the Effective Time, they shall be canceled against delivery of the Merger Consideration. All cash paid upon conversion of shares of Company Common Stock in accordance with the terms of this Article 2. No interest will II shall be deemed to have been paid or will accrue on any cash payable in full satisfaction of all rights of the respective Holders pertaining to holders such shares of Certificates pursuant to the provisions of Article 2Company Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Great American Financial Resources Inc), Merger Agreement (Ceres Group Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon promptly as reasonably practicable after the Effective DateTime, LMHC shall cause the Exchange Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Eligible Shares that are (i) Certificates or (ii) Book-Entry Shares, notice advising such holders of the effectiveness of the STFC Merger, which notice shall include (1) appropriate transmittal materials (including a customary letter of transmittal transmittal) that (which will A) shall specify that delivery will shall be effected, effected and risk of loss and title to the Certificates will pass, or such Book-Entry Shares shall pass only upon proper delivery of the Certificates (or an affidavit of loss in lieu thereof, together with any bond or indemnity agreement, as contemplated by Section 3.09), or the surrender of such Book-Entry Shares to the Exchange Paying Agent and will (which shall be deemed to have been effected upon the delivery of a customary “agent’s message” with respect to such Book-Entry Shares or such other reasonable evidence, if any, of such surrender as the Paying Agent may reasonably request), as applicable, such materials to be in such form and have such other provisions as the Exchange Agent LMHC and STFC may reasonably agree and (B) shall be in such customary form and have such other customary provisions as LMHC may specify consistent with this Agreement(and reasonably acceptable to STFC) and (ii2) instructions for use in effecting the surrender of the Certificates (or an affidavit of loss in lieu thereof, together with any bond or indemnity agreement, as contemplated by Section 3.09) or such Book-Entry Shares to the Paying Agent in exchange for the Merger ConsiderationConsideration that such holder is entitled to receive as a result of the STFC Merger pursuant to Section 3.01.
(iiib) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentPaying Agent of Eligible Shares that are (i) Certificates, by physical surrender of such Certificates (or an affidavit of loss in lieu thereof, together with such any bond or indemnity agreement, as contemplated by Section 3.09), together with a letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such any other documents as may reasonably be required by the Exchange AgentPaying Agent in accordance with the terms of the materials and instructions provided by the Paying Agent or (ii) Book-Entry Shares, by book- receipt of an “agent’s message” by the Paying Agent in connection with the surrender of Book- Entry Shares (or such other reasonable evidence, if any, of surrender with respect to such Book- Entry Shares, as the Paying Agent may reasonably request), the holder of such Certificate will or Book-Entry Share shall be entitled to receive in exchange therefor therefor, and LMHC shall cause the Paying Agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds (after giving effect to any required Tax withholdings as provided in Section 3.10) equal to the product obtained by multiplying (1) the number of Eligible Shares represented by such Certificates (or an affidavit of loss in lieu thereof, together with any bond or indemnity agreement, as contemplated by Section 3.09) or such Book-Entry Shares by (2) the Merger Consideration that such holder has Consideration. No profit, interest or income shall be paid or accrued for the right to receive pursuant to the provisions benefit of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to Eligible Shares on any amount payable upon the satisfaction surrender of FNB that such tax has been paid or is not applicableany Eligible Shares. Until surrendered as contemplated by this Section 3.13.06, each such Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the applicable Merger Consideration.
(c) In the event of a transfer of ownership of any Certificate that is not registered in the transfer records or ledger of STFC or if the consideration payable is to be paid in a name other than in which the Certificate or Certificates surrendered or transferred in exchange therefor are registered in the transfer records or ledger of STFC, the applicable portion of the aggregate Merger Consideration that may be paid to such a transferee if the holder thereof has the right to receive Certificate or Certificates is or are properly endorsed and otherwise in respect of such Certificate pursuant proper form for surrender and presented to the provisions of Article 2. No interest will be Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable Transfer Taxes have been paid or will accrue on any cash payable are not applicable, in each case, in form and substance, reasonably satisfactory to holders LMHC and the Paying Agent. Payment of Certificates pursuant the applicable portion of the aggregate Merger Consideration with respect to Book-Entry Shares shall only be made to the provisions Person in whose name such Book-Entry Shares are registered in the stock transfer books or ledger of Article 2STFC.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(iia) As soon promptly as reasonably practicable after the Effective DateTime, Holdco shall cause the Exchange Agent will mail to send to each holder of record of a Certificate, shares of Company Common Stock whose shares of SWVA Company Common Stock were converted pursuant to Section 1.7 into the Stock Consideration and the right to receive Merger the Cash Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will shall specify that delivery will be effected, and risk of loss and title to the Certificates will or Uncertificated Company Stock shall pass, only upon (A) with respect to shares evidenced by Certificates, delivery of the Certificates (or affidavits of loss in lieu thereof) and (B) with respect to Uncertificated Company Stock, upon proper delivery of any “agent’s message” regarding the book-entry transfer of Uncertificated Company Stock (or such other evidence, if any, of the transfer as the Exchange Agent may reasonably request), as applicable, to the Exchange Agent and will shall be in such a form and have such other provisions as Parent may reasonably specify) (the Exchange Agent may specify consistent with this Agreement“Letter of Transmittal”) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Considerationor Uncertificated Company Stock.
(iiib) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation or Uncertificated Company Stock to the Exchange Agent, Agent together with such letter a Letter of transmittalTransmittal, duly completed and validly executed, and such other documents as may reasonably be required by the Exchange Agent, Holdco shall cause the Exchange Agent to, as promptly as practicable, (i) in the case of the Stock Consideration, credit in the stock ledger and other appropriate books and records of Holdco the number of shares of the holder of such Certificates of Uncertificated Company Stock into which the shares of Company Common Stock represented by such Certificate will be entitled or Uncertificated Company Stock have been converted pursuant to receive this Agreement, and (ii) in exchange therefor the Merger case of the Cash Consideration, pay and deliver a check in the amount of the aggregate Cash Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. this Agreement together with any dividends or other distributions to which such Certificates or Uncertificated Company Stock become entitled in accordance with Section 2.3.
(c) In the event of a transfer of ownership of Shares that are Company Common Stock which is not registered in the transfer records of SWVAthe Company, any shares of Holdco Common Stock to be credited upon, and any cash to be paid upon, due surrender of the Certificate or Uncertificated Company Stock formerly representing such shares of Company Common Stock Holdco may cause the Exchange Agent to credit or pay, as the case may be, payment may be issued to such a person other than the person in whose name the Certificate so surrendered is registered transferee only if such Certificate or Uncertificated Company Stock is properly endorsed or otherwise in proper form for presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes evidence to the satisfaction of FNB the Exchange Agent that such tax has any applicable stock transfer or similar Taxes have been paid or is are not applicable. .
(d) Until surrendered as contemplated by this Section 3.12.2, each Certificate will be deemed and Uncertificated Company Stock shall at any time after the Effective Date to represent only Time represent, upon such surrender, the Stock Consideration and the right to receive upon the Cash Consideration into which the shares represented by such surrender Certificates or Uncertificated Company Stock have been converted pursuant to this Agreement, together with any dividends or other distributions to which such Certificates or Uncertificated Company Stock become entitled in accordance with Section 2.3.
(e) Each Parent Certificate immediately prior to the Merger Consideration Effective Time shall, from and after the Effective Time and as a result of the Merger, represent an equivalent number of shares of Holdco Common Stock. At the Effective Time, Holdco shall cause the Exchange Agent to credit in the stock ledger and other appropriate books and records of Holdco an equivalent number of shares of Holdco Common Stock for any uncertificated shares of Parent Common Stock (other than any Parent Cancelled Shares); provided, however, that if an exchange of Parent Certificates for new certificates is required by Law or applicable rule or regulation, or is desired at any time by Holdco, in its sole discretion, Holdco shall arrange for such exchange on a one-for-one-share basis. For the holder thereof avoidance of doubt, from and after the Effective Time, the former holders of Parent Common Stock, which has been converted into Holdco Common Stock at the right Effective Time, shall be entitled to receive in any dividends and distributions which may be made with respect to such shares of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Holdco Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Express Scripts Holding Co.), Merger Agreement
Exchange Procedures. (ia) Not Promptly after the execution of this Agreement, Parent shall designate and appoint a bank or trust company reasonably acceptable to the Company to act as exchange agent hereunder (the “Exchange Agent”) for the purpose of exchanging Certificates.
(b) Promptly after the Effective Time, but in any event not more than 45 days nor fewer than 30 days prior to five (5) Business Days after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record as of a Certificate, whose immediately prior to the Effective Time of shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each such holder, a properly completed Form of Election“Company Common Stock Holder”), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will each Certificate representing any shares of Company Common Stock held by such Company Common Stock Holder shall pass, only upon delivery of the Certificates completed letter of transmittal and such Certificate to the Exchange Agent and will shall be in such form and have such other provisions as Parent and the Exchange Agent may specify consistent with this AgreementCompany shall mutually agree) and (ii) instructions for use in effecting the surrender of the Certificates each such Certificate in exchange for the total amount of Merger ConsiderationConsideration that such Company Common Stock Holder is entitled to receive in exchange for such holder’s shares of Company Common Stock in the Merger pursuant to this Agreement. From and after the Effective Time, until surrendered as contemplated by this Section 3.2, each Certificate representing shares of Company Common Stock held by a Company Common Stock Holder shall be deemed to represent only the right to receive the total amount of Merger Consideration to which such Company Common Stock Holder is entitled in exchange for such shares of Company Common Stock as contemplated by Section 2.
(iiic) With Promptly after the Effective Time, Parent shall cause the Exchange Agent to (i) mail to each holder of Uncertificated Shares (other than Excluded Shares) materials advising such holder of the effectiveness of the Merger and the conversion of their Shares into the right to receive the Merger Consideration and (ii) issue in registered form to each holder of Uncertificated Shares that number of whole shares of Parent Stock that such holder is entitled to receive in respect of each such Uncertificated Share pursuant to properly made elections this Agreement, cash in lieu of fractional shares in respect of each such Uncertificated Share and any dividends and other distributions in respect of the Parent Stock to be issued or paid pursuant to Section 3.3.
(d) Upon surrender by a Company Common Stock Holder to the Exchange Agent of all Certificates representing such holder’s shares of Company Common Stock, together with a letter of transmittal duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will each Company Common Stock Holder shall be entitled to receive in exchange therefor (and the Merger Consideration Exchange Agent shall mail to such Company Common Stock Holder within ten (10) Business Days following such surrender): (i) a certificate (or certificates in the aggregate) representing the number of whole shares of Parent Stock, if any, into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, and such Certificates so surrendered shall be forthwith canceled, and (ii) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Section 3.7) equal to (A) the amount of cash in lieu of a fractional share of Parent Stock to be paid pursuant to Section 2.1(c)), if any, into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, plus (B) any cash dividends and other distributions that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 23.3.
Appears in 2 contracts
Sources: Merger Agreement (Enventis Corp), Merger Agreement (Consolidated Communications Holdings, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), Parent will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, instruct the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each record holder of record Public Common Units as of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time (i) a letter of transmittal (which will specify specifying that in respect of certificated Public Common Units, delivery will be effected, and risk of loss and title to the Certificates will pass, only upon proper delivery of the Certificates to the Exchange Agent Agent, and which will be in such customary form and have such other provisions as agreed to by Parent and the Exchange Agent may specify consistent with this AgreementPartnership prior to the Effective Time) and (ii) instructions (in customary form and agreed to by Parent and the Partnership prior to the Effective Time) for use in effecting the surrender of the Certificates or Book-Entry Units in exchange for the Merger Consideration.
(iii) With Consideration payable in respect to properly made elections in accordance with Section 3.1(i)of Public Common Units represented by such Certificates or Book-Entry Units, and as applicable. Promptly after the Effective Time, upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates, if any, for cancellation to the Exchange Agent, Agent together with such letter letters of transmittal, properly completed and duly executed, and such other documents (including in respect of Book-Entry Units) as may be reasonably be required by pursuant to such instructions, each holder who held Public Common Units immediately prior to the Exchange Agent, the holder of such Certificate Effective Time will be entitled to receive upon surrender of the Certificates or Book-Entry Units therefor (subject to any applicable withholding Tax) (A) Parent Shares representing, in exchange therefor the Merger Consideration aggregate, the whole number of Parent Shares that such holder has the right to receive pursuant to this Article III (after taking into account all Public Common Units then held by such holder) and (B) a check in an amount equal to the provisions aggregate amount of cash that such holder has the right to receive pursuant to this Article 2III, and the Certificate so surrendered including dividends or other distributions pursuant to Section 3.3(c), if any. No interest will forthwith be canceledpaid or accrued on any dividends or other distributions payable pursuant to Section 3.3(c). In the event of a transfer of ownership of Shares Public Common Units that are is not registered in the transfer records of SWVAthe Partnership, as the Merger Consideration payable in respect of such Public Common Units may be paid to a transferee if the Certificate representing such Public Common Units or evidence of ownership of the Book-Entry Units is presented to the Exchange Agent, and in the case may beof both certificated and book-entry Public Common Units, payment may be issued accompanied by all documents reasonably required to a person other than the person in whose name the Certificate so surrendered is registered if evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer transfer, and the person Person requesting such issuance pays exchange will pay to the Exchange Agent in advance any transfer or other taxes Taxes required by reason of such payment to a person the delivery of the Merger Consideration in any name other than that of the registered record holder of such Certificate Public Common Units, or establishes will establish to the satisfaction of FNB the Exchange Agent that such tax has Taxes have been paid or is are not applicablepayable. Until all such required documentation has been delivered and Certificates, if any, have been surrendered as contemplated by this Section 3.13.3(b), each Certificate or Book-Entry Unit will be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the upon such delivery and surrender, and any cash or dividends or other distributions to which such holder thereof has the right to receive in respect of such Certificate is entitled pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 3.3(c).
Appears in 2 contracts
Sources: Merger Agreement (Chevron Corp), Merger Agreement (Noble Midstream Partners LP)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days At or prior to the Effective DateTime, First Nationalthe Acquiror shall deposit, as the or shall cause to be deposited, with an exchange agent appointed prior to the Effective Time by the Acquiror (the "Exchange Agent"), will mail as agent for the benefit of the holders of certificates formerly representing shares of Company Common Stock ("Old Certificates"), for exchange in accordance with this Article III, certificates representing the shares of Acquiror Common Stock ("New Certificates") and an estimated amount of cash (such cash and New Certificates, together with any dividends or distributions with a form of election record date occurring after the Effective Date with respect thereto (without any interest on any such cash, dividends or distributions), being hereinafter referred to as the "Form of ElectionExchange Fund") to each shareholder of record of SWVA be issued as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentConsideration.
(iib) As soon promptly as reasonably practicable after the Effective Date, the Exchange Agent will mail Surviving Corporation shall send or cause to be sent to each former holder of record of a Certificate, whose shares (other than Treasury Stock) of Company Common Stock immediately prior to the Effective Time transmittal materials for use in exchanging such stockholder's Old Certificates for Merger Consideration. The Surviving Corporation shall cause the New Certificates into which shares of SWVA a stockholder's Company Common Stock were are converted into on the right Effective Date and/or any check in respect of any fractional share interests or dividends or distributions which such person shall be entitled to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title delivered to the Certificates will pass, only such stockholder upon delivery of the Certificates to the Exchange Agent of Old Certificates representing such shares of Company Common Stock (or indemnity satisfactory to the Surviving Corporation and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder if any of such Certificate will be entitled to receive in exchange therefor the Merger Consideration certificates are lost, stolen or destroyed) owned by such stockholder; provided that New Certificates and/or any such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are check shall not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if any Company Affiliate unless and until such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax Company Affiliate has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate delivered an agreement pursuant to the provisions of Article 2Section 6.07. No interest will be paid or will accrue on any Consideration, including cash payable to holders be paid in lieu of Certificates fractional share interests, or in respect of dividends or distributions which any such person shall be entitled to receive pursuant to this Article II upon such delivery.
(c) Notwithstanding the provisions foregoing, neither the Exchange Agent nor any party hereto shall be liable to any former holder of Company Stock for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(d) No dividends or other distributions on Acquiror Common Stock with a record date occurring after the Effective Time shall be paid to the holder of any unsurrendered Old Certificate representing shares of Company Common Stock converted in the Merger into the right to receive shares of such Acquiror Common Stock until the holder thereof shall be entitled to receive New Certificates in exchange therefor in accordance with this Article 2III, and no such shares of Company Common Stock shall be eligible to vote until the holder of Old Certificates is entitled to receive New Certificates in accordance with this Article III. After becoming so entitled in accordance with this Article III, the record holder thereof also shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to shares of Acquiror Common Stock such holder had the right to receive upon surrender of the Old Certificate.
(e) Any portion of the Exchange Fund that remains unclaimed by the stockholders of the Company for six months after the Effective Time shall be returned to the Acquiror. Any stockholders of the Company who have not theretofore complied with this Article III shall thereafter look only to the Acquiror for payment of the shares of Acquiror Common Stock, cash in lieu of any fractional shares and unpaid dividends and distributions on the Acquiror Common Stock deliverable in respect of each share of Company Common Stock such stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon.
Appears in 2 contracts
Sources: Agreement and Plan of Combination (North American Mortgage Co), Agreement and Plan of Combination (Dime Bancorp Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be As promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, Parent shall cause the Exchange Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Company Certificate immediately prior to the right to receive Merger Consideration and those who failed to return Effective Time (other than Company Certificates representing Dissenting Shares) that has not timely submitted a properly completed and executed Form of ElectionElection accompanied by an appropriately endorsed Certificate or Certificates representing all of the shares of Company Common Stock owned by that stockholder (or, alternatively, by an appropriate guarantee of delivery) (ia) a letter of transmittal (which will the "Letter of Transmittal") that shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent Agent, and will which Letter of Transmittal shall be in such customary form and have such other provisions as Parent or Company may reasonably specify (such letter to be reasonably acceptable to Company and Parent prior to the Exchange Agent may specify consistent with this AgreementEffective Time) and (iib) instructions for use in effecting the surrender of the such Company Certificates in exchange for the Merger Consideration.
(iii) With , together with any dividends and other distributions with respect thereto and any cash in lieu of fractional shares. Upon surrender of a Company Certificate to properly made elections the Exchange Agent together with such Letter of Transmittal or the Form of Election pursuant to Section 3.1(e), duly executed and completed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Company Certificate will shall be entitled to receive in exchange therefor (i) shares of Parent Common Stock (which shall be in uncertificated book-entry form, unless a physical certificate is requested by such holder or is otherwise required by applicable law or regulation) representing, in the Merger Consideration aggregate, the whole number of shares that such holder has the right to receive pursuant to Section 3.1(b) (after taking into account all shares of Company Common Stock then held by such holder), (ii) a check in the amount equal to the cash, if any, that such holder has the right to receive pursuant to Section 3.1 and (iii) a check in the amount equal to the cash, if any, that such holder has the right to receive pursuant to the provisions of this Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person III other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at including cash in lieu of any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect fractional shares of such Certificate Parent Common Stock pursuant to the provisions of Article 2Section 3.7 and dividends and other distributions pursuant to Section 3.5. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of this Article 2III. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of Company, one or more shares of Parent Common Stock evidencing, in the aggregate, the proper number of shares of Parent Common Stock pursuant to Section 3.1, a check in the proper amount of cash comprising the Cash-Stock Consideration pursuant to Section 3.1, a check in the proper amount of cash in lieu of any fractional shares of Parent Common Stock pursuant to Section 3.7 and any dividends or other distributions to which such holder is entitled pursuant to Section 3.5, may be issued with respect to such Company Common Stock to such a transferee if the Company Certificate representing such shares of Company Common Stock 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.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to As promptly as practicable after the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionTime, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail send to each record holder of record of a Certificate, whose shares in each case, other than in respect of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of ElectionDissenting Shares, (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i). As soon as reasonably practicable after the Effective Time, and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executed, and such other customary documents as may reasonably be required by the Exchange AgentAgent to effect the exchange, Parent shall cause the Exchange Agent to issue and pay, to the holder (or such holder’s transferee in accordance with Section 2.2(d)) of such Certificate, in exchange therefor, the number of full shares of Parent Common Stock (which shall be in uncertificated, book-entry form) and the amount of cash (including in respect of any dividends or other distributions to which holders are entitled pursuant to Section 2.3, if any, or any other amounts payable pursuant to this Agreement) into which the aggregate number of shares of Company Common Stock previously represented by 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.
(b) Any holder of such Uncertificated Company Stock will not be required to deliver a Certificate will be entitled or an executed letter of transmittal to the Exchange Agent to receive in exchange therefor the Merger Consideration with respect to such Uncertificated Company Stock. As soon as reasonably practicable after the Effective Time, upon receipt of an “agent’s message” in customary form (it being understood that holders of Uncertificated Company Stock will be deemed to have transferred such holder has the right to receive pursuant to the provisions Uncertificated Company Stock upon receipt of Article 2an “agent’s message” or such other evidence, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAif any, as the case Exchange Agent may be, payment may be issued reasonably request) with respect to a person other than holder of Uncertificated Company Stock (or such holder’s transferee in accordance with Section 2.2(d)), Parent shall cause the person Exchange Agent to issue and pay, to such holder (or such holder’s transferee in whose name accordance with Section 2.2(d)), in exchange therefor, the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise number of full shares of Parent Common Stock (which shall be in proper form for transfer uncertificated, book-entry form) and the person requesting such issuance pays any transfer or other taxes required by reason amount of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive cash (including in respect of such Certificate any dividends or other distributions to which holders are entitled pursuant to Section 2.3, if any) into which the provisions aggregate number of Article 2. shares of Uncertificated Company Stock shall have been converted pursuant to this Agreement.
(c) No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to Section 2.3 or Section 2.5.
(d) In the provisions event of Article 2a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, one or more shares of Parent Common Stock evidencing, in the aggregate, the proper number of shares of Parent Common Stock and any dividends or other distributions to which such holder is entitled pursuant to Section 2.3, may be issued with respect to such Company Common Stock to such a transferee only if the Certificate representing such shares of Company Common Stock is presented to the Exchange Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid.
(e) As promptly as practicable after the exchange of any Certificate or Uncertificated Company Stock pursuant to this Section 2.2, Parent shall cause the Exchange Agent to mail or deliver to each former holder of such Certificate or Uncertificated Company Stock a statement reflecting the number of whole shares of Parent Common Stock issued in exchange therefor.
Appears in 2 contracts
Sources: Merger Agreement (Take Two Interactive Software Inc), Merger Agreement (Zynga Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to As promptly as practicable following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent LSI shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record (as of immediately prior to the Effective Time) of a Certificate, whose certificate or certificates (the “Certificates”) which immediately prior to the Effective Time represented outstanding shares of SWVA Agere Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form (or effective affidavits of Election, loss in lieu thereof) or non-certificated shares of Agere Common Stock represented by book entry (“Book Entry Shares”)
(i) a letter of transmittal in customary form as Agere and LSI may reasonably agree (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates (or effective affidavits in lieu thereof) or Book Entry Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates or Book Entry Shares in exchange for the Merger Consideration.
(iiicertificates representing whole shares of LSI Common Stock pursuant to Section 2.7(a), cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.7(c) and any dividends or other distributions payable in respect thereof pursuant to Section 2.8(d). With respect to properly made elections uncertificated shares of Agere Common Stock held through “direct registration”, LSI shall implement procedures with the Exchange Agent for effecting the exchange of such directly registered uncertificated shares of Agere Common Stock and payment of cash in accordance with lieu of any fractional shares pursuant to Section 3.1(i2.7(a), and upon as promptly as practicable after the Effective Time. Upon surrender of Certificates (or effective affidavits in accordance with Section 3.1(iilieu thereof) of a Certificate or Book Entry Shares for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by LSI, together with such letter of transmittal, duly executed, completed and such other documents as may reasonably be required by validly executed in accordance with the Exchange Agentinstructions thereto, the holder holders of such Certificate will Certificates or Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration that number of whole shares of LSI Common Stock (after taking into account all Certificates or such Book Entry Shares surrendered by such holder has of record) to which such holder is entitled pursuant to Section 2.7(a) (which, at the election of LSI, may be in uncertificated book entry form unless a physical certificate is requested by the holder of record or is otherwise required by applicable Legal Requirements), payment in lieu of fractional shares to which such holder is entitled pursuant to Section 2.7(c) and any dividends or distributions to which such holder is entitled pursuant to Section 2.8(d), and the Certificates so surrendered shall forthwith be canceled. The Exchange Agent shall accept such Certificates or Book Entry Shares 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. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book Entry Shares on the cash amounts payable upon the surrender of such Certificates or such Book Entry Shares pursuant to this Section 2.8. Until so surrendered, from and after the Effective Time outstanding Certificates or Book Entry Shares shall be deemed to evidence only the ownership of the number of full shares of LSI Common Stock into which such shares of Agere Common Stock shall have been so converted and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 2.7(c) and any dividends or distributions payable pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 22.8(d).
Appears in 2 contracts
Sources: Merger Agreement (Agere Systems Inc), Merger Agreement (Lsi Logic Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date Parent and the Effective Date. Any election Surviving Corporation shall cause the Payment Agent to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares Shares as of SWVA Common Stock were converted into immediately prior to the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time: (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of a certificate or certificates (the Certificates “Certificates”) that immediately prior to the Exchange Agent Effective Time represented outstanding Shares (excluding Owned Shares and will be Dissenting Shares) (or effective affidavits of loss in such form lieu thereof) or transfer of non-certificated Shares (excluding Owned Shares and have such other provisions as Dissenting Shares) represented by book entry (“Uncertificated Shares”) to the Exchange Agent may specify consistent with this Agreement) Payment Agent); and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Uncertificated Shares in exchange for the Merger Consideration.
Consideration payable in respect thereof pursuant to the provisions of Article I. Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Shares represented by a Certificate or Uncertificated Share, upon (iiix) With respect surrender to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) the Payment Agent of a Certificate for cancellation to the Exchange AgentCertificate, together with such a duly completed and validly executed letter of transmittal, duly executed, transmittal and such other documents as may reasonably be required requested by the Exchange Payment Agent, or (y) receipt of an “agent’s message” by the holder Payment Agent (or such other evidence, if any, of such Certificate will be entitled to receive transfer as the Payment Agent may reasonably request) in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions case of Article 2, and the Certificate a book-entry transfer of Uncertificated Shares. Until so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAor transferred, as the case may be, payment may be issued to a person other than from and after the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of Effective Time each such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to Uncertificated Share shall represent for all purposes only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive payable in respect of such Certificate thereof pursuant to the provisions of Article 2. I. If Certificates or Uncertificated Shares are presented to the Surviving Corporation after the Effective Time for any reason, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth in Article I. No interest will shall be paid or will accrue accrued on any the cash payable to holders upon the surrender or transfer of Certificates pursuant such Certificate or Uncertificated Share. From and after the Effective Time, there will be no further registration of transfers on the records of the Surviving Corporation of Shares that were issued and outstanding immediately prior to the provisions of Article 2Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Rofin Sinar Technologies Inc), Merger Agreement (Coherent Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, Parent shall cause the Exchange Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right to receive the Merger Consideration and those who failed to return a properly completed Form of ElectionConsideration, (i) a form of letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates that immediately prior to the Effective Time represented shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent or, in the case of book-entry shares that immediately prior to the Effective Time represented shares of Company Common Stock (“Book-Entry Shares”), upon adherence to the procedures set forth in the letter of transmittal, and will shall be in such customary form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i). Each holder of record of one or more Certificates or Book-Entry Shares shall, and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentPaying Agent of such Certificates or Book-Entry Shares, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that amount of cash to which such holder has the right to receive is entitled pursuant to the provisions of Article 2Section 2.01(c), and the Certificate Certificates or Book-Entry Shares so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are Company Common Stock which is not registered in the transfer records of SWVA, as the case may beCompany, payment of the Merger Consideration in accordance with this Section 2.02(b) may be issued made to a person other than the person in whose name the Certificate or Book-Entry Share so surrendered is registered if such Certificate is or Book-Entry Share shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents required to evidence and effect such transfer) and the person requesting such issuance pays payment shall pay any transfer or other taxes required by reason of such the payment of the Merger Consideration to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicableBook-Entry Share. Until surrendered as contemplated by this Section 3.12.02(b), each Certificate will and each Book-Entry Share (other than Certificates or Book-Entry Shares representing Dissenting Shares, Cancelled Shares and Remaining Shares) shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Consideration. No interest will shall be paid or will accrue on any cash payable payment to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article 2II.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date------------------- Time, the Exchange Agent will mail Survivin g Corporation shall cause to be mailed to each holder of record of a Certificate, certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Preferred Stock or Common Stock (the "Certificates") whose shares of SWVA are being converted into Parent Common Stock were converted into pursuant to Section 4.1 hereof and the right to receive Merger Consideration and those who failed to return a properly completed Form of ElectionReorganization Agreement, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon Parent Common Stock. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that such number of shares of Parent Common Stock to which the holder has the right to receive of Company Preferred Stock or Common Stock is entitled pursuant to the provisions of Article 2, Section 4.1 hereof and the Reorganization Agreement. The Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are Company Preferred Stock or Common Stock which is not registered in on the transfer records of SWVAthe Company, as the case may be, payment appropriate number of shares of Parent Common Stock may be issued delivered to a person other than the person in whose name transferee if the Certificate so surrendered representing such capital stock of the Company is registered if presented to the Exchange Agent and accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays to evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.14.2, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect number of such Certificate pursuant to shares of Parent Common Stock as provided by this Section 2 and the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2California Code.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent Appropriate transmittal materials ("Exchange Agent"), will mail a form Letter of election (the "Form of ElectionTransmittal") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar satisfactory to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date Newco and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent Patapsco shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), be mailed as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable (but in no event later than five business days) after the Effective Date, the Exchange Agent will mail Time to each holder of record of Patapsco Common Stock as of the Effective Time who did not previously submit a Certificate, whose completed Election Form. A Letter of Transmittal will be deemed properly completed only if accompanied by certificates representing all shares of SWVA Patapsco Common Stock were to be converted into thereby or other acceptable documentation.
(b) At and after the Effective Time, each Certificate (except as specifically set forth in Section 2.5) shall represent only the right to receive the Merger Consideration and those who failed Consideration.
(c) Prior to return a properly completed Form of Electionthe Effective Time, Newco shall (i) reserve for issuance with its transfer agent and registrar a letter sufficient number of transmittal shares of Newco Common Stock to provide for payment of the aggregate Stock Consideration and (which will ii) deposit, or cause to be deposited, with the Exchange Agent, for the benefit of the holders of shares of Patapsco Common Stock, for exchange in accordance with this Section 2.7, an amount of cash sufficient to pay the aggregate Cash Consideration.
(d) The Letter of Transmittal shall (i) specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will Agent, (ii) be in such a form and have such contain any other provisions as the Exchange Agent Newco may specify consistent with this Agreement) reasonably determine and (iiiii) include instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon the proper surrender in accordance with Section 3.1(ii) of a Certificate for cancellation the Certificates to the Exchange Agent, together with such letter a properly completed and duly executed Letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange AgentTransmittal, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor the Merger Consideration a certificate representing that number of whole shares of Newco Common Stock that such holder has the right to receive pursuant to the provisions of Article 2Section 2.5, if any, and a check in the Certificate amount equal to the cash that such holder has the right to receive pursuant to Section 2.5, if any (including any cash in lieu of fractional shares, if any, that such holder has the right to receive pursuant to Section 2.5, and any dividends or other distributions to which such holder is entitled pursuant to Section 2.5). Certificates so surrendered will shall forthwith be canceled. In As soon as practicable following receipt of the event properly completed Letter of Transmittal and any necessary accompanying documentation, the Exchange Agent shall distribute Newco Common Stock and cash as provided herein. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to the shares of Newco Common Stock held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect to such shares for the account of the persons entitled thereto. If there is a transfer of ownership of Shares that are any shares of Patapsco Common Stock not registered in the transfer records of SWVAPatapsco, as the case may be, payment may Merger Consideration shall be issued to a person other than the person transferee thereof if the Certificates representing such Patapsco Common Stock are presented to the Exchange Agent, accompanied by all documents required, in whose name the Certificate so surrendered is registered if reasonable judgment of Newco and the Exchange Agent, to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays to evidence that any applicable stock transfer taxes have been paid.
(e) No dividends or other taxes required by reason of such payment to a person other than the registered holder of such Certificate distributions declared or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time made after the Effective Date Time with respect to represent only the right Newco Common Stock issued pursuant to this Agreement shall be remitted to any person entitled to receive shares of Newco Common Stock hereunder until such person surrenders his or her Certificates in accordance with this Section 2.7. Upon the surrender of such person's Certificates, such person shall be entitled to receive any dividends or other distributions, without interest thereon, which subsequent to the Effective Time had become payable but not paid with respect to shares of Newco Common Stock represented by such person's Certificates.
(f) The stock transfer books of Patapsco shall be closed immediately upon such surrender the Effective Time and from and after the Effective Time there shall be no transfers on the stock transfer records of Patapsco of any shares of Patapsco Common Stock. If, after the Effective Time, Certificates are presented to Newco, they shall be canceled and exchanged for the Merger Consideration deliverable in respect thereof pursuant to this Agreement in accordance with the procedures set forth in this Section 2.7.
(g) Any portion of the aggregate amount of cash to be paid pursuant to Section 2.5, any dividends or other distributions to be paid pursuant to this Section 2.7 or any proceeds from any investments thereof that remains unclaimed by the holder thereof has stockholders of Patapsco for six months after the right Effective Time shall be repaid by the Exchange Agent to receive Newco upon the written request of Newco. After such request is made, any stockholders of Patapsco who have not theretofore complied with this Section 2.7 shall look only to Newco for the Merger Consideration deliverable in respect of each share of Patapsco Common Stock such stockholder holds, as determined pursuant to Section 2.5 of this Agreement, without any interest thereon. If outstanding Certificates are not surrendered prior to the date on which such payments would otherwise escheat to or become the property of any governmental unit or agency, the unclaimed items shall, to the extent permitted by any abandoned property, escheat or other applicable laws, become the property of Newco (and, to the extent not in its possession, shall be paid over to it), free and clear of all claims or interest of any person previously entitled to such claims. Notwithstanding the foregoing, neither the Exchange Agent nor any party to this Agreement (or any affiliate thereof) shall be liable to any former holder of Patapsco Common Stock for any amount delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.
(h) Newco and the Exchange Agent shall be entitled to rely upon Patapsco's stock transfer books to establish the identity of those persons entitled to receive the Merger Consideration, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate, Newco and the Exchange Agent shall be entitled to deposit any Merger Consideration represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(i) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Exchange Agent or Newco, the posting by such person of a bond in such amount as the Exchange Agent 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 Merger Consideration deliverable in respect thereof pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 2.5.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior At or promptly following the Merger Effective Time, CCI shall cause SS&C Technologies, Inc., or any successor transfer agent of CCI (the “Transfer Agent”), to record on the stock records of CCI the issuance of shares of CCI Class I Common Stock (including any fractional shares thereof) equal to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive REIT Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election that is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail issuable to each holder of record of a Certificate, whose shares of SWVA RS Common Stock were converted into pursuant to Section 3.1. For the right to receive avoidance of doubt, payment of the REIT Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will shall only be effected, and risk of loss and title made to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person Person in whose name the Certificate so surrendered is relevant shares of RS Common Stock are registered if such Certificate is properly endorsed in the stock transfer books of RS as of the Merger Effective Time.
(b) At or otherwise in proper form for transfer and promptly following the person requesting such Merger Effective Time, CROP shall cause the Transfer Agent to record on the partnership unit ledger of CROP the issuance pays of CROP Common Units (including any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes fractional shares thereof) equal to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Partnership Merger Consideration that is issuable to each holder of partnership units of RSOP pursuant to Section 3.1. For the holder thereof has avoidance of doubt, payment of the right Partnership Merger Consideration shall only be made to receive the Person in whose name the relevant partnership units are registered in the partnership unit ledger of RSOP as of the Merger Effective Time.
(c) None of CCI, RS, the Surviving Entity, the Surviving OP, the Transfer Agent or any employee, officer, director, agent or Affiliate of such entities, shall be liable to any Person in respect of such Certificate any REIT Merger Consideration or Partnership Merger Consideration (or the appropriate portion thereof) that has been delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts so delivered that remain unclaimed by holders of shares of RS Common Stock immediately prior to the provisions time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of Article 2. CCI free and clear of any claims or interest of such holders or their successors, assigns or personal representatives previously entitled thereto.
(d) No interest will shall be paid or will accrue accrued on the REIT Merger Consideration (or any cash amounts in respect thereof, including any dividends payable to on shares of CCI Common Stock) or the Partnership Merger Consideration (or any amounts in respect thereof, including any distributions payable on partnership units of RSOP) for the benefit of the holders of Certificates pursuant to the provisions of Article 2thereof.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to On the Effective Closing Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") Parent shall deliver to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Securityholder (i) a letter of transmittal substantially in the form of Exhibit C attached hereto ("Letter of Transmittal"), which will shall specify that delivery will shall be effectedeffected upon adherence to the procedures set forth in the Letter of Transmittal, and risk of loss which shall be in a customary form and title agreed to by Parent and the Company prior to the Certificates will passClosing, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange such Company Shares for the Merger delivery of such Securityholder's Allocated Consideration.
(iiib) With respect Upon surrender to properly made elections Parent of Company Shares, together with the Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i)the instructions thereto, and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will Securityholders shall be entitled to receive in exchange therefor the Merger Allocated Consideration that such holder has the right to receive pursuant to the provisions of this Article 2I (which Parent Common Shares shall be in uncertificated book-entry form). No interest shall be paid or accrued for the benefit of Securityholders on the Allocated Consideration payable in respect of such Company Shares. If delivery of the Allocated Consideration is to be made to a Person other than a Securityholder, and the Certificate it shall be a condition of delivery that Company Shares so surrendered will forthwith shall be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or shall be otherwise in proper form for transfer and that the person Person requesting such issuance pays delivery shall have paid any transfer or and other taxes Taxes required by reason of such payment the delivery of the Allocated Consideration to a person Person other than the registered holder Securityholder of such Certificate Company Shares surrendered or establishes shall have established to the satisfaction of FNB the Surviving Company that such tax has Taxes either have been paid or is are not applicable. Until surrendered as contemplated by this Section 3.11.03(b), each Certificate will Company Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Allocated Consideration that the holder thereof has the right to receive deliverable in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Company Shares.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable to after the date of mailing and mutually agreed hereof, Spartan shall use its reasonable best efforts to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Company Stock were converted into evidenced by certificates (the right “Certificates”) entitled to receive the applicable Per Share Merger Consideration and those who failed pursuant to return a properly completed Form of Election, (i) Section 3.01: a letter of transmittal transmittal, which shall be in a form reasonably acceptable to Spartan and the Company (which will the “Letter of Transmittal”) and shall specify (A) that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Agent, and (iiB) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
(iii) With respect to properly made elections cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefore, and Spartan shall cause the Exchange Agent to deliver the applicable Per Share Merger Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.01, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.02, each Certificate will entitled to receive the applicable Per Share Merger Consideration in accordance with Section 3.01 shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the applicable Per Share Merger Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article Section 3.01.
(ii) Within two (2. No interest will be paid or will accrue on any cash payable ) Business Days (but in no event prior to holders the Effective Time), Spartan shall cause the Exchange Agent to deliver to each holder of Company Stock, as of immediately prior to the Effective Time, represented by book-entry (including shares of Company Class A Common Stock resulting from the conversion of Company Preferred Stock not evidenced by Certificates pursuant to and Company Convertible Notes and the Company Convertible Equity Security described in Section 3.01(a), Section 3.01(b) and Section 3.01(c), respectively), the applicable Per Share Merger Consideration in accordance with the provisions of Article 2Section 3.01, and such Company Stock shall forthwith be cancelled.
Appears in 1 contract
Sources: Business Combination Agreement (Spartan Energy Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will shall mail to each holder of record of a Certificatecertificate or certificates which, whose immediately prior to the Effective Time, represented outstanding shares of SWVA Common Company Stock (each, a "Certificate"), which holder's ----------- shares of Company Stock were converted into the right to receive the per share Merger Consideration and those who failed to return a properly completed Form of Election, as set forth in Section 3.1: (i1) a letter of transmittal (the "Letter of Transmittal") which will shall specify that delivery will shall be effected, --------------------- effected and risk of loss and title to the Certificates will pass, shall pass only upon delivery of the Certificates to the Exchange Agent Agent, and will shall be in such form and have such other provisions as the Exchange Agent Surviving Corporation may specify consistent with this Agreement) reasonably specify; and (ii2) instructions for use in effecting the surrender of the Certificates in exchange for the per share Merger Consideration.
(iiiii) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter the Letter of transmittalTransmittal, duly executed, and such any other documents as may reasonably be required by the Exchange AgentAgent or the Surviving Corporation, (A) the holder of such a Certificate will formerly representing shares of Company Stock shall be entitled to receive in exchange therefor the applicable amount of Merger Consideration that which such holder has the right to receive pursuant to the provisions of Article 2Section 3.1, and (B) the Certificate so surrendered will shall forthwith be canceled. .
(iii) In the event of a transfer of ownership of Shares that are Company Stock which is not registered in the transfer records of SWVAthe Company, as the case may be, payment applicable amount of Merger Consideration may be issued paid to a person other than the person in whose name transferee if the Certificate so surrendered representing such Company Stock is registered if such Certificate is presented to the Exchange Agent properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes accompanied by all documents reasonably required by reason of the Exchange Agent or the Surviving Corporation to evidence and effect such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB transfer and by evidence that such tax has any applicable stock transfer taxes have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.13.2, each such Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the applicable amount of Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Consideration.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior Promptly after the execution of this Agreement, Parent shall designate and appoint a bank or trust company reasonably acceptable to the Effective Date, First National, Company to act as the exchange agent hereunder (the "Exchange Agent")) for the purpose of exchanging Certificates.
(b) Promptly after the Effective Time, will mail a form of election but in any event not more than five (5) Business Days after the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Effective Time, Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record as of a Certificate, whose immediately prior to the Effective Time of shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each such holder, a properly completed Form of Election"Company Common Stock Holder"), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will each Certificate representing any shares of Company Common Stock held by such Company Common Stock Holder shall pass, only upon delivery of the Certificates completed letter of transmittal and such Certificate to the Exchange Agent and will shall be in such form and have such other provisions as Parent and the Exchange Agent may specify consistent with this AgreementCompany shall mutually agree) and (ii) instructions for use in effecting the surrender of the Certificates each such Certificate in exchange for the total Merger Consideration that such Company Common Stock Holder is entitled to receive in exchange for such holder's shares of Company Common Stock in the Merger pursuant to this Agreement. From and after the Effective Time, until surrendered as contemplated by this Section 4.2, each Certificate representing shares of Company Common Stock held by a Company Common Stock Holder shall be deemed to represent only the right to receive the total Merger Consideration to which such Company Common Stock Holder is entitled in exchange for such shares of Company Common Stock as contemplated by Section 3.
(c) Promptly after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of Uncertificated Shares (other than Excluded Shares) materials advising such holder of the effectiveness of the Merger and the conversion of their Shares into the right to receive the Merger Consideration.
(iiid) With respect Upon surrender by a Company Common Stock Holder to properly made elections the Exchange Agent of all Certificates representing such holder's shares of Company Common Stock, together with a letter of transmittal duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will each Company Common Stock Holder shall be entitled to receive in exchange therefor (and the Exchange Agent shall mail to such Company Common Stock Holder within ten (10) Business Days following such surrender): the Merger Consideration in respect of each share of Company Common Stock represented by a Certificate or Uncertificated Share; provided that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate until so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAor transferred, as the case may be, payment may each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration.
(e) If any portion of the total Merger Consideration is to be issued paid to a person Person other than the person Person in whose name the surrendered Certificate so surrendered or the transferred Uncertificated Share is registered if registered, it shall be a condition to such payment that (i) either such Certificate is shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the person Person requesting such issuance pays payment shall pay to the Exchange Agent any transfer or other taxes Taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Share or establish to the satisfaction of FNB the Exchange Agent that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2payable.
Appears in 1 contract
Sources: Merger Agreement (Cartesian, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable to after the date of mailing and mutually agreed this Agreement, R▇▇▇ shall use its commercially reasonable efforts to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into evidenced by certificates (the right “Certificates”) entitled to receive the Per Share Merger Consideration and those who failed pursuant to return a properly completed Form of Election, (i) Section 3.01: a letter of transmittal transmittal, which shall be in a form reasonably acceptable to R▇▇▇ and the Company (which will the “Letter of Transmittal”) and shall specify (A) that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Agent, and (iiB) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
(iii) With respect to properly made elections cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefor, and R▇▇▇ shall cause the Exchange Agent to deliver the Per Share Merger Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.01, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.02, each Certificate will entitled to receive the Per Share Merger Consideration in accordance with Section 3.01 shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article Section 3.01.
(ii) Within two (2. No interest will be paid or will accrue on any cash payable ) Business Days (but in no event prior to holders the Effective Time), R▇▇▇ shall cause the Exchange Agent to deliver to each holder of Certificates pursuant the Company Common Stock, as of immediately prior to the Effective Time, represented by book-entry (including shares of Company Common Stock resulting from the conversion of Company Preferred Stock described in Section 3.01(a)), the Per Share Merger Consideration in accordance with the provisions of Article 2Section 3.01, and such Company Common Stock shall forthwith be cancelled.
Appears in 1 contract
Sources: Business Combination Agreement (Roth CH Acquisition v Co.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days 2.2.1 Immediately prior to the Effective Date, First NationalParent or Acquisition Corp will deposit or cause to be deposited with Continental Stock Transfer & Trust Co., as or another paying agent mutually acceptable to Parent and the exchange agent Company (the "Exchange Paying Agent"), will mail a form in trust for the holders of election record of Common Stock (excluding Management Restricted Shares for which substitute securities are to be issued pursuant to Section 4.9 hereof) immediately prior to the Effective Date other than the Ineligible Holders (the "Form of ElectionCompany Shareholders") cash in an aggregate amount equal to each shareholder (i) the number of shares of Common Stock held of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
Company Shareholders multiplied by (ii) the Cash Merger Consideration (such deposit with the Paying Agent pursuant to this paragraph is referred to as the "Payment Fund"). The Payment Fund shall not be used for any purpose except as provided in this Agreement.
2.2.2 As soon as reasonably practicable after the Effective Date, the Exchange Surviving Corporation shall cause the Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) Company Shareholder a letter of transmittal and instructions for use (which will specify the "Letter of Transmittal") in effecting the surrender of certificates representing shares of Common Stock outstanding immediately prior to the Effective Date ("Certificates"). The Letter of Transmittal shall be in customary form, include provisions stating that delivery will shall be effected, and risk of loss and title to the such Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) Paying Agent, provide instructions for use in effecting the surrender of the such Certificates in exchange for the Merger Consideration.
Consideration and provide such other provisions as Parent may reasonably specify (iii) With respect to properly made elections including those provisions described in accordance with this Section 3.1(i2.2), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Paying Agent, together with such letter Letter of transmittalTransmittal, duly and properly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor therefore (A) the amount equal to (i) the number of shares of Common Stock represented by such Certificate multiplied by (ii) the Cash Merger Consideration, and (B) one Deferred Payment Right for each share of Common Stock represented by such Certificate. If the Cash Merger Consideration that such holder has the right (or any portion thereof) is to receive pursuant be delivered to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a any person other than the person in whose name the Certificate representing shares of Common Stock surrendered in exchange therefor is registered on the record books of the Company, it shall be a condition to such exchange that the Certificate so surrendered is registered if such Certificate is shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such issuance pays exchange shall pay to the Paying Agent any transfer or other taxes required by reason of the payment of such payment consideration to a person other than the registered holder of such the Certificate surrendered, or establishes shall establish to the satisfaction of FNB the Paying Agent that such tax has been paid or is not applicable. Until surrendered Deferred Payment Rights shall not be evidenced by certificates and shall not be transferable, except as contemplated required by this Section 3.1law. All payments, each Certificate will if any, with respect to the Deferred Payment Rights shall be deemed at any time after paid to the persons in whose name the Certificates are registered on the books of the Company immediately prior to the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Date. No interest will be paid or will accrue on any the cash payable upon surrender of any Certificate. Until surrendered as contemplated by this Section 2.2, each Certificate shall, on and after the Effective Date, be deemed to represent only the right to receive, upon surrender of such Certificate, the Merger Consideration with respect to the shares of Common Stock represented thereby.
2.2.3 On and after the Effective Date, there shall be no transfers on the stock transfer books of the Company of the shares of Common Stock which were outstanding immediately prior to the Effective Date. If, after the Effective Date, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged as provided in this Section 2.2. In the event of a transfer of ownership of shares of Common Stock which is not registered in the transfer records of the Company, payment may be made with respect to such share of Common Stock to such a transferee only if the Certificate representing such shares of Common Stock is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and evidence that any applicable stock transfer taxes have been paid.
2.2.4 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 the Surviving Corporation, upon the posting by such person of a bond in such amount as the Surviving Corporation may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in respect of such lost, stolen or destroyed Certificate, the Merger Consideration with respect to the shares of Common Stock represented thereby.
2.2.5 Any portion of the Payment Fund which remains unclaimed by any of the Company Shareholders for nine (9) months after the Effective Date shall be delivered to the Surviving Corporation upon demand of the Surviving Corporation, and the holders of Certificates shares of Common Stock shall thereafter look only to the Surviving Corporation for payment of their claim for the Cash Merger Consideration in respect of their shares of Common Stock. Neither Parent, Acquisition Corp nor the Surviving Corporation shall be liable to any holder of shares of Common Stock for any Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.
2.2.6 Parent or the provisions Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Article 2a Certificate surrendered for the Merger Consideration such amount as Parent or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code as of 1986, as amended (the "Code"), or any provision of any state, local or foreign tax law. To the extent that amounts are so deducted and withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of such Certificate.
2.2.7 In the case of 4,000 shares of Common Stock held of record by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or his assigns which the Company represents are the subject of a dispute between Besicorp Group Inc. ("BGI") and ▇▇. ▇▇▇▇▇▇▇, the Merger Consideration shall be placed in the existing escrow with respect to such 4,000 shares, and appropriate provision will be made in the Paying Agent agreement for the holding of Deferred Payments, if any, and the Cash Merger Consideration payable in respect of such shares in such escrow, pending resolution of the dispute.
2.2.8 The fees and expenses of the Paying Agent will be paid from earnings on the Payment Fund. To the extent earnings on the Payment Fund are insufficient to pay such fees and expenses, such fees and expenses shall be paid by the Surviving Corporation. The Company and Parent and Acquisition Corp agree that any interest earned on the Payment Fund and not utilized to pay the fees and expenses of the Paying Agent will be transferred to the Surviving Corporation.
Appears in 1 contract
Sources: Merger Agreement (Besicorp LTD)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, Buyer, as agent for the Exchange Agent will mail Surviving Corporation, shall cause to be mailed to each holder of record of a Certificate, whose certificate previously representing shares of SWVA Company Common Stock were converted into (a "Certificate") the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, following: (i) a letter of transmittal (which will specify in substantially the form of Exhibit E hereto specifying that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Buyer; and (ii) instructions for use in effecting the surrender of the Certificates in exchange payment for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon the proper surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentBuyer, together with such a properly completed and duly executed letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive receive, in exchange therefor payment therefor, a check representing the Merger Consideration that (including a pro rata share of any Adjustment in Favor of Stockholders at the time the same becomes payable pursuant hereto) which such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of Article 2hereof, and the Certificate so surrendered will shall forthwith be canceledcancelled. No interest will be paid or accrued on the Merger Consideration. In the event of a transfer of ownership of Shares that are any shares of Company Common Stock not registered in the transfer records of SWVAthe Company, as a check for the case may be, payment Merger Consideration (including a pro rata share of any Adjustment in Favor of Stockholders at the time the same becomes payable pursuant hereto) may be issued to a person other than the person in whose name transferee if the Certificate so surrendered representing such Company Common Stock is registered if presented to Buyer, accompanied by documents sufficient, in the discretion of Buyer, (i) to evidence and effect such Certificate is properly endorsed transfer, and (ii) to evidence that all applicable stock transfer taxes have been paid. After the Effective Time, the stock transfer books of the Company shall be closed and no transfer of Company Common Stock shall thereafter be made or otherwise in proper form for transfer recognized. Buyer and Merger Sub shall cooperate with the Company prior to the Effective Time to take such actions as may be necessary to permit and facilitate the delivery of as many Certificates as possible, and the person requesting such issuance pays any transfer or other taxes required by reason payment of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Closing Merger Consideration attributable thereto (it being understood that the holder thereof has the right to receive any Adjustment in respect Favor of such Certificate pursuant to the provisions of Article 2. No interest Stockholders will be paid or will accrue on any cash payable to holders of Certificates pursuant subsequent to the Effective Time in accordance with the provisions of Article 2hereof), simultaneously with the Effective Time.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionTime, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each record holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Company Certificate at the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) Effective Time a letter of transmittal in customary and reasonable form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will shall pass, only upon actual delivery of the Certificates thereof to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) shall contain instructions for use in effecting the surrender of the Company Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections property described in accordance with Section 3.1(ithe next sentence), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of Company Certificate(s) held by any record holder of a Company Certificate, together with such letter of transmittal, transmittal duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor a Parent Certificate representing the number of whole shares of Parent Common Stock into which the Company Common Shares represented by the surrendered Company Certificate(s) shall have been converted at the Effective Time pursuant to this Article I, cash in lieu of any fractional share of Parent Common Stock in accordance with Section 1.8 and any dividends and other distributions payable in accordance with Section 1.7; and the Company Certificate(s) so surrendered shall forthwith be cancelled. Shares of Parent Common Stock issued in the Merger Consideration that shall be issued as of, and be deemed to be outstanding as of, the Effective Time. Parent shall cause all such holder has the right to receive shares of Parent Common Stock issued pursuant to the provisions of Article 2Merger to be duly authorized, validly issued, fully paid and the Certificate so surrendered will forthwith be cancelednonassessable and not subject to preemptive rights. In the event any Company Certificate(s) shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate(s) to be lost, stolen or destroyed and, if reasonably required by Parent or the Surviving Corporation, upon the posting by such person of a transfer of ownership of Shares bond in such amount as Parent or the Surviving Corporation may reasonably direct as indemnity against any claim that are not registered in the transfer records of SWVA, as the case may be, payment may be issued made against it with respect to a person other than such Certificate(s), the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate Exchange Agent will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive issue in respect of such Certificate pursuant lost, stolen or destroyed Certificate(s), the consideration to be received by virtue of the Merger with respect to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant Company Common Shares represented thereby (subject to the provisions payment of Article 2cash in lieu of fractional shares in accordance herewith) and such person shall be entitled to the voting, dividend and other distribution rights provided herein with respect thereto.
Appears in 1 contract
Sources: Merger Agreement (Imc Global Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable to after the date of mailing and mutually agreed hereof, VectoIQ shall use its reasonable best efforts to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right and holder of Company Preferred Stock entitled to receive the Per Share Merger Consideration pursuant to Section 3.01: a letter of transmittal, which shall be in a form reasonably acceptable to VectoIQ and those who failed to return a properly completed Form the Company (the “Letter of Election, Transmittal”) and shall specify (i) a letter of transmittal (which will specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates evidencing such shares of Company Common Stock or Company Preferred Stock (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in or confirmation of cancellation of such form and have such other provisions as Certificates from the Exchange Agent may specify consistent with this Agreement) Company’s transfer agent, eShares, Inc. DBA Carta, Inc. (each, a “Carta Cancellation”); and (ii) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
cancellation (iii) With respect to properly made elections or a Carta Cancellation), together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefore, and VectoIQ shall cause the Exchange Agent to deliver, the Per Share Merger Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.01, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.02, each Certificate will entitled to receive the Per Share Merger Consideration in accordance with Section 3.01 shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 3.01.
Appears in 1 contract
Sources: Business Combination Agreement (VectoIQ Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to As promptly as practicable following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent IESI-BFC shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record (as of immediately prior to the Effective Time) of a Certificate, whose certificate or certificates (the “Certificates”) which immediately prior to the Effective Time represented outstanding shares of SWVA WSI Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form (or effective affidavits of Election, loss in lieu thereof) or non-certificated shares of WSI Common Stock represented by book entry (“Book Entry Shares”) (i) a letter of transmittal in customary form as WSI and IESI-BFC may reasonably agree (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates (or effective affidavits in lieu thereof) or Book Entry Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates or Book Entry Shares in exchange for the Merger Consideration.
(iii) certificates representing whole shares of IESI-BFC common stock pursuant to Section 2.3.1, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.5.4. With respect to properly made elections uncertificated shares of WSI Common Stock held through “direct registration,” IESI-BFC shall implement procedures with the Exchange Agent for effecting the exchange of such directly registered uncertificated shares of WSI Common Stock and payment of cash in accordance with lieu of any fractional shares pursuant to Section 3.1(i)2.3.1, and upon as promptly as practicable after the Effective Time. Upon surrender of Certificates (or effective affidavits in accordance with Section 3.1(iilieu thereof) of a Certificate or Book Entry Shares for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by IESI-BFC, together with such letter of transmittal, duly executed, completed and such other documents as may reasonably be required by validly executed in accordance with the Exchange Agentinstructions thereto, the holder holders of such Certificate will Certificates or Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration that number of whole shares of IESI-BFC common stock (after taking into account all Certificates or such Book Entry Shares surrendered by such holder has of record) to which such holder is entitled pursuant to Section 2.3.1 (which, at the election of IESI-BFC, may be in uncertificated book entry form unless a physical certificate is requested by the holder of record or is otherwise required by applicable Laws), payment in lieu of fractional shares to which such holder is entitled pursuant to Section 2.3.3 and any dividends or distributions to which such holder is entitled pursuant to Section 2.5.4, and the Certificates so surrendered shall forthwith be canceled. The Exchange Agent shall accept such Certificates or Book Entry Shares 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. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book Entry Shares on the cash amounts payable upon the surrender of such Certificates or such Book Entry Shares pursuant to this Section 2.5. Until so surrendered, from and after the Effective Time outstanding Certificates or Book Entry Shares shall be deemed to evidence only the ownership of the number of full shares of IESI-BFC common stock into which such shares of WSI Common Stock shall have been so converted and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 2.3.3 and any dividends or distributions payable pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 22.5.4.
Appears in 1 contract
Sources: Merger Agreement (IESI-BFC LTD)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will shall mail to each holder of record of a Certificate, Certificate or Certificates which immediately prior to the Effective Time represented outstanding Shares whose shares of SWVA Common Stock Shares were converted into the right to receive Merger Consideration and those who failed shares of Company Common Stock or cash or both pursuant to return a properly completed Form of ElectionSection 1.6, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent Company may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon certificates representing shares of Company Common Stock or cash or both. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration a certificate representing that number of whole shares of Company Common Stock or cash or both which such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article 2I (after taking into account all Shares then held by such holder), and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are which is not registered in the transfer records of SWVAthe Seller, as a certificate representing the case may be, payment proper number of shares of Company Common Stock or cash or both may be issued to a person other than transferee if the Certificate representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person in whose name the Certificate so surrendered is registered if claiming such Certificate is properly endorsed to be lost, stolen or otherwise in proper form for transfer destroyed and the posting by such person requesting of a bond in such issuance pays amount as the Company may direct as indemnity against any transfer claim that may be made against it or other taxes required by reason the Exchange Agent with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate a certificate representing the proper number of such payment to a person other than the registered holder shares of such Certificate Company Common Stock or establishes to the satisfaction of FNB that such tax has been paid cash or is not applicableboth. Until surrendered as contemplated by this Section 3.11.9, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive certificate representing shares of Company Common Stock and cash in respect lieu of such Certificate pursuant to the provisions any fractional shares of Article 2. No interest will be paid Company Common Stock as contemplated by Section 1.9(e) or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2or both.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior Prior to the Effective Closing Date, First National, as the exchange agent ("Exchange Agent"), will mail a form Company shall use commercially reasonable efforts to cause any shares of election Company Common Stock evidenced by share certificates (the "Form of Election"“Company Certificates”) to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting Company and replaced with electronic statements or book entry form evidencing such shares of Company Common Stock; provided that if such Company Certificates are lost, stolen, or destroyed, the same owner of such lost, stolen, or destroyed Company Certificates shall make an affidavit of that fact and shall indemnify the Company, the Second Surviving Company, and H▇▇▇▇▇ against any claim that may be made against Company, the Second Surviving Company, or Holdco with respect to the Exchange AgentCompany Certificates alleged to have been lost, stolen or destroyed as a condition to the issuance of electronic statements or book entry form of shares the owner of such lost, stolen or destroyed Company Certificates.
(ii) As soon as reasonably practicable At the Closing, Holdco shall instruct the Transfer Agent to issue the SPAC Merger Consideration to the record holders of SPAC Class A Ordinary Shares entitled to receive a portion of the SPAC Merger Consideration in book-entry form, and the electronic or book entry positions representing the SPAC Class A Ordinary Shares shall be canceled. All Holdco Shares issued in accordance with this Section 2.5(b)(ii) shall be deemed to have been issued in full satisfaction of all rights pertaining to the SPAC Class A Ordinary Shares and there shall be no further registration of transfers on the records of the First Surviving Company of the SPAC Class A Ordinary Shares that were outstanding immediately prior to the SPAC Merger Effective Time. If, after the SPAC Merger Effective DateTime, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title SPAC Ordinary Shares are presented to the Certificates will passFirst Surviving Company for any reason, only upon delivery of the Certificates to the Exchange Agent they shall be cancelled and will be exchanged as provided in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger ConsiderationSection 2.5(b)(ii).
(iii) With respect At the Closing, Holdco shall instruct the Transfer Agent to properly made elections issue the Company Merger Consideration to the record holders of Company Common Stock entitled to receive a portion of the Company Merger Consideration in book-entry form, and the electronic or book entry positions representing the shares of Company Common Stock shall be canceled. All Holdco Shares issued in accordance with this Section 3.1(i), and upon surrender 2.5(b)(iii) shall be deemed to have been issued in accordance with Section 3.1(ii) full satisfaction of a Certificate for cancellation all rights pertaining to the Exchange Agent, together with such letter Company Common Stock and there shall be no further registration of transmittal, duly executed, and such other documents as may reasonably be required by transfers on the Exchange Agent, records of the holder Second Surviving Company of such Certificate will be entitled to receive in exchange therefor the Merger Consideration shares of Company Common Stock that such holder has the right to receive pursuant were outstanding immediately prior to the provisions Company Merger Effective Time. If, after the Company Merger Effective Time, shares of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that Company Common Stock are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes presented to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered Second Surviving Company for any reason, they shall be cancelled and exchanged as contemplated by provided in this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 22.5(b)(iii).
Appears in 1 contract
Sources: Business Combination Agreement (Coliseum Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, As promptly as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, Parent will instruct the Exchange Agent will to mail to each holder of record of a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock were converted into (other than shares of Company Common Stock that have been canceled pursuant to Section 2.01(b)) (the right "Certificates") and who did not make a valid Election pursuant to receive Merger Consideration and those who failed to return a properly completed Form of ElectionSection 2.01, (i) a letter of transmittal (which will shall be in customary form and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections Consideration and cash in accordance with Section 3.1(i), and upon lieu of fractional shares. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, Agent together with such letter of transmittal, duly executedexecuted and completed in accordance with the instructions thereto, and such other customary documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will shall forthwith be canceled. Subject to Section 2.02(i), under no circumstances will any holder of a Certificate be entitled to receive any part of the Merger Consideration until such holder shall have surrendered such Certificate. In the event of a transfer of ownership of Shares that are shares of Company Common Stock which is not registered in the transfer records of SWVAthe Company, as the case may be, payment Merger Consideration may be issued paid in accordance with this Article II to a person other than the person in whose name transferee if the Certificate so surrendered representing such shares of Company Common Stock is registered if presented to the Exchange Agent, accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays by evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.12.02, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2Consideration. No interest will shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Merger Consideration.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be As promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable practicable, after the Effective DateTime, the Exchange Agent will mail Parent shall cause to be mailed to each holder of record of a Company Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Company Certificates will shall pass, only upon delivery of the Company Certificates to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreementcustomary form) and (ii) instructions for use in effecting the surrender of the Company Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Company Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, completed and validly executed in accordance with the instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Company Certificate will shall be entitled to receive promptly in exchange therefor (A) a certificate representing the Merger Consideration number of whole shares of Parent Common Stock that such holder has the right to receive as part of the Merger Consideration and (B) a check for the cash that such holder is entitled to receive, including any cash consideration, cash in lieu of fractional shares, any dividends or other distributions to which such holder is entitled pursuant to the provisions of Article 2Section 1.7, and the Company Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.1so surrendered, each outstanding Company Certificate will shall be deemed at any time from and after the Effective Date Closing, for all corporate purposes, to represent only evidence the right to receive upon such surrender the Merger Consideration that Consideration. Any portion of the holder thereof has shares of Parent Common Stock and cash deposited with the right Exchange Agent pursuant to Section (b) above, which remains undistributed to the holders of the shares of Company Common Stock for 12 months after the Closing shall be delivered to Parent, upon demand, and any holders of shares of Company Common Stock who have not theretofore complied with this Exhibit C shall thereafter be entitled to receive in respect from Parent payment of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on Merger Consideration and any cash payable in lieu of fractional shares, dividends or distributions with respect to Parent Common Stock to which such holders of Certificates pursuant to the provisions of Article 2may be then entitled.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will mail Surviving Corporation shall cause to be mailed to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) record holder, as of the Effective Time, of an outstanding certificate or certificates which immediately prior to the Effective Time represented shares of the Company Common Stock (the "Certificates") or (ii) holder, as of the Effective Time, of shares of Company Common Stock represented by book-entry ("Book-Entry Shares"), a form of letter of transmittal (which will shall be in customary form and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will held by such person shall pass, only only, subject to Section 2.4(c), upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementPaying Agent) and (ii) instructions for use in effecting the surrender of the Certificates in exchange or Book-Entry Shares for payment of the Merger Consideration.
(iii) With respect Consideration therefor. Upon surrender to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) the Paying Agent of a Certificate or Book Entry Shares for cancellation to the Exchange Agentcancellation, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will or Book-Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration that for each share formerly represented by such holder has the right to receive pursuant to the provisions of Article 2, Certificate or Book-Entry Shares and the such Certificate so surrendered will forthwith or applicable book-entry shall then be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may No interest shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicableaccrued for the benefit of holders of the Certificates or Book-Entry Shares on the Merger Consideration payable in respect of the Certificates or Book-Entry Shares. Until surrendered for cancellation as contemplated by this Section 3.12.4(b), each Certificate will and each Book-Entry Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the applicable Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article as contemplated by this Section 2.
Appears in 1 contract
Sources: Merger Agreement (Intergraph Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior Concurrently with the mailing of the Consent Solicitation Statement, GCAC shall mail or cause to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail mailed to each holder of record of a CertificateCompany Common Stock, whose shares of SWVA Common Company Class F Stock were converted into or Company Preferred Stock evidenced by certificates (the right “Certificates”) entitled to receive Merger the Per Share Stock Consideration and those who failed pursuant to return a properly completed Form of Election, (i) Section 3.01: a letter of transmittal transmittal, which shall be in a form reasonably acceptable to GCAC and the Company (the “Letter of Transmittal”), and which will shall (A) contain customary representations and warranties as to title, authorization, execution and delivery, (B) contain a customary release of all claims against GCAC and the Company arising out of or related to such holder’s ownership of shares of Company Common Stock, Company Class F Stock or Company Preferred Stock, (C) specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) GCAC, and (iiD) include instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to GCAC of all Certificates held by such holder for cancellation (to the Merger Consideration.
(iii) With respect to properly made elections extent such shares of Company Common Stock, Company Class F Stock or Company Preferred Stock are or were certificated), together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefore, and GCAC shall deliver the Merger Per Share Stock Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.01, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.02, each Certificate will entitled to receive the Per Share Stock Consideration, in accordance with Section 3.01 shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Merger Per Share Stock Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 3.01.
Appears in 1 contract
Sources: Business Combination Agreement (Growth Capital Acquisition Corp.)
Exchange Procedures. (a) At the First Merger Effective Time, by virtue of the First Merger and without any further action on the part of any Person, each Company Member shall be entitled to receive, in payment of their respective portion of the Closing Share Consideration, a number of shares of Parent Post-Merger Common Stock equal to (i) Not more than 45 days nor fewer than 30 days the Closing Exchange Ratio, multiplied by (ii) the number of Company Units held by such Company Member as of immediately prior to the First Merger Effective DateTime, with fractional shares rounded down to the nearest whole share.
(b) At the First NationalMerger Effective Time, by virtue of the First Merger and without any further action on the part of any Person, each Company Member shall be entitled to receive, in payment of their respective portion of the Earnout Share Consideration, a number of shares of Parent Post-Merger Common Stock equal to (i) the Earnout Exchange Ratio, multiplied by (ii) the number of Company Units held by such Company Member as of immediately prior to the First Merger Effective Time, with fractional shares rounded down to the nearest whole share (the “Earnout Shares”).
(c) At the First Merger Effective Time, by virtue of the First Merger and without any further action on the part of any Person, each Company Member shall be entitled to receive, in payment of their respective pro rata portion of the Merger Warrant Consideration, a number of Merger Warrants equal to (i) the Merger Warrant Consideration, multiplied by (ii) a fraction of which the numerator is the number of Company Units held by such Company Member as of immediately prior to the First Merger Effective Time, and of which the denominator is the Aggregate Company Units.
(d) At least five (5) Business Days prior to the Closing, Parent shall appoint an exchange agent ("which, for the avoidance of doubt, may be Parent’s existing transfer agent) (the “Exchange Agent"), will mail a form of election (the "Form of Election"”) to each shareholder act as the agent for the purpose of record of SWVA as of a record date as close as practicable paying the Merger Consideration to the date Company Members. Prior to the First Merger Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent such number of mailing shares of Parent Post-Merger Common Stock equal to the Share Consideration and mutually agreed such number of Merger Warrants equal to by SWVA the Merger Warrant Consideration.
(e) At least three (3) Business Days prior to the Closing, Parent shall send, or shall cause the Exchange Agent to send, to each Company Member, a letter of transmittal in a customary form reasonably acceptable to the Company and FNBParent (each, a “Letter of Transmittal”). The Company shall use reasonable best efforts to cause the Company Members to return the completed and signed Letters of Transmittal prior to the Closing.
(f) The Exchange Agent shall enter into a written agreement with FNB deliver to each Company Member upon the later of (i) the First Merger Effective Time and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar (ii) delivery to Exhibit B. In addition, the Exchange Agent will use of a duly completed and validly executed Letter of Transmittal by such Company Member, a number of shares of Parent Post-Merger Common Stock and a number of Merger Warrants to which such Company Member is entitled pursuant to Sections 3.1(a), (b) and (c), such delivery to occur in accordance with the Letter of Transmittal.
(g) Promptly following the date that is one (1) year after the First Merger Effective Time, Parent shall instruct the Exchange Agent to deliver to Parent all documents in its best efforts to make the Form of Election available possession relating to the persons who become shareholders of SWVA during the period between such record date transactions contemplated hereby, and the Exchange Agent’s duties shall terminate. Thereafter, any portion of the Share Consideration that remains unclaimed shall be returned to Parent, and any Person that was a Company Member as of immediately prior to the First Merger Effective Date. Any election to receive Time that has not exchanged his, her or its Company Units for an applicable portion of the Merger Consideration will have been properly made only if in accordance with this Section 3.2 prior to the date that is one (1) year after the First Merger Effective Time, may transfer such Company Units to Parent and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and Parent shall cause Parent’s transfer agent to promptly deliver, such applicable portion of the Merger Consideration. None of Parent, either Merger Sub, the Company, either Surviving Company or the Exchange Agent shall be liable to any Person in respect of any of the Merger Consideration delivered to a public official pursuant to and in accordance with any applicable abandoned property, escheat or similar Laws. If any such shares shall not have received on the fifth business day not been transferred immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. such date on which any amounts payable pursuant to this ARTICLE III would otherwise escheat to or become the Election Deadline. If an election is so revokedproperty of any Governmental Authority, the Certificate(s) (or guarantee of deliveryany such amounts shall, as appropriate) to which such election relates will be promptly returned to the person submitting extent permitted by applicable Law, become the same to the Exchange Agentproperty of Parent, free and clear of all claims or interest of any Person previously entitled thereto.
(iih) As soon as reasonably practicable after For the Effective Dateavoidance of doubt, and notwithstanding anything in this Agreement to the Exchange Agent will mail to each holder of record of a Certificatecontrary, whose no fractional shares of SWVA Parent Post-Merger Common Stock were converted into the right or Merger Warrants to receive purchase fractional shares of Parent Post-Merger Consideration and those who failed to return Common Stock shall be issued as a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery result of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger ConsiderationFirst Merger.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (AltEnergy Acquisition Corp)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable to after the date of mailing and mutually agreed hereof, Athena shall use its reasonable best efforts to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into the right entitled to receive the Per Share Merger Consideration pursuant to Section 3.1: a letter of transmittal, which shall be in a form reasonably acceptable to Athena and those who failed to return a properly completed Form the Company (the “Letter of Election, Transmittal”) and shall specify (i) a letter of transmittal (which will specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificates evidencing such shares of Company Common Stock (the “Certificates”) shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be or confirmation of cancellation of such Certificates from the Company’s transfer agent, Continental Stock Transfer & Trust Company (each, a “Transfer Agent Cancellation”) or if such Certificates are held by the Company in electronic format, upon confirmation of cancellation of such form and have such other provisions as Certificates by the Exchange Agent may specify consistent with this Agreement) Company; and (ii) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
cancellation (iii) With respect to properly made elections or a Transfer Agent Cancellation), together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may be reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefore, and Athena shall cause the Exchange Agent to deliver, the Per Share Merger Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.1, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.13.3, each Certificate will entitled to receive the Per Share Merger Consideration in accordance with Section 3.2(a)(i) shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2Section 3.2(a)(i).
Appears in 1 contract
Sources: Business Combination Agreement (Athena Technology Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to As promptly as practicable following the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record (as of immediately prior to the Effective Time) (x) of a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Common Company Capital Stock were converted into (or effective affidavits of loss in lieu thereof), (y) of non-certificated shares of Company Capital Stock represented by book entry (“Book Entry Shares”) or (z) of a certificate or other written evidence of ownership of Company Options (together with (x), the right to receive Merger Consideration and those who failed to return a properly completed Form of Election“Certificates”), (i) a letter of transmittal in customary form as Parent and the Company may reasonably agree (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or Book Entry Shares shall pass, only upon delivery of the Certificates (or effective affidavits in lieu thereof) or Book Entry Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAgent) and (ii) instructions for use in effecting the surrender of the Certificates or Book Entry Shares in exchange for the Merger Consideration.
(iiicertificates representing whole shares of Parent Common Stock pursuant to Section 1.6, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 1.6(e) and any dividends or other distributions payable in respect thereof pursuant to Section 1.7(d). With respect to properly made elections uncertificated shares of Company Capital Stock held through “direct registration,” Parent shall implement procedures with the Exchange Agent for effecting the exchange of such directly registered uncertificated shares of Company Capital Stock and payment of cash in accordance with lieu of any fractional shares pursuant to Section 3.1(i1.6(e) and any dividends or distributions to which such holder is entitled pursuant to Section 1.7(d), and upon as promptly as practicable after the Effective Time. Upon surrender of Certificates (or effective affidavits in accordance with Section 3.1(iilieu thereof) of a Certificate or Book Entry Shares for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, completed and such other documents as may reasonably be required by validly executed in accordance with the Exchange Agentinstructions thereto, the holder holders of such Certificate will Certificates or Book Entry Shares shall be entitled to receive in exchange therefor the Merger Consideration that number of whole shares of Parent Common Stock (after taking into account all Certificates or Book Entry Shares surrendered by such holder has of record) to which such holder is entitled pursuant to Section 1.6(b) (which, at the election of Parent, may be in uncertificated book entry form unless a physical certificate is requested by the holder of record or is otherwise required by applicable Law), cash payment in lieu of fractional shares to which such holder is entitled pursuant to Section 1.6(e) and any dividends or distributions to which such holder is entitled pursuant to Section 1.7(d), and the Certificates or Book Entry Shares so surrendered shall forthwith be canceled. The Exchange Agent shall accept such Certificates or Book Entry Shares 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. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book Entry Shares on the cash amounts payable upon the surrender of such Certificates or Book Entry Shares pursuant to this Section 1.7. Until so surrendered, from and after the Effective Time, outstanding Certificates or Book Entry Shares shall be deemed to evidence only the ownership of the number of full shares of Parent Common Stock into which such shares of Company Capital Stock or Company Options shall have been so converted and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 1.6(e) and any dividends or distributions payable pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 21.7(d).
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, the Exchange Agent will shall mail to each holder of record of a Certificatecertificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the “Certificates”) and to each holder of uncertificated shares of Company Common Stock (the “Uncertificated Shares”), in each case whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.2, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or the Uncertificated Shares shall pass, only upon valid delivery of the Certificates or valid transfer of the Uncertificated Shares to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of surrendering the Certificates or transferring the Uncertificated Shares in exchange for the Merger Consideration.
. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share upon (iiiA) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, or (B) receipt of an “agent’s message” by the holder Exchange Agent (or such other evidence, if any, of such Certificate will be entitled to receive transfer as the Exchange Agent may reasonably request), in exchange therefor the case of a book-entry transfer of Uncertificated Shares. Upon payment of the Merger Consideration that such holder has the right to receive pursuant to the provisions of this Article 2, and the each Certificate or Uncertificated Share so surrendered will or transferred shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that are is not registered in the transfer records of SWVA, as the case may beCompany, payment may be issued made to a person Person other than the person Person in whose name the Certificate so surrendered or the Uncertificated Shares so transferred is registered if such Certificate is shall be properly endorsed or otherwise be in proper form for transfer or such Uncertificated Shares shall be properly transferred and the person Person requesting such issuance pays shall pay any transfer or other taxes Taxes (as defined in Section 3.12(m)) required by reason of such the payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Shares or establish to the satisfaction of FNB Parent and the Exchange Agent that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, Each Certificate and each Certificate will Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender in accordance with this Section 2.3 the Merger Consideration that into which the holder thereof has the right to receive in respect shares of such Certificate Company Common Stock shall have been converted pursuant to the provisions of Article 2Section 2.2. No interest will shall be paid or will shall accrue on any cash payable to holders of Certificates or Uncertificated Shares pursuant to the provisions of this Article 2.
Appears in 1 contract
Sources: Merger Agreement (Ceradyne Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime, Parent shall cause the Exchange Paying Agent will to mail to each holder of record of (i) a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), in each case, which at the Effective Time were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 3.1, (iA) a letter of transmittal (which will which, in the case of Certificates, shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Paying Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (iiB) instructions for use in effecting the surrender of the Certificates or Uncertificated Shares in exchange for the Merger Consideration.
. Upon (iii1) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates for cancellation to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by ▇▇▇▇▇▇, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto or (2) or receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a bookentry transfer of Uncertificated Shares, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor the portion of the Merger Consideration that to which such holder has the right to receive is entitled pursuant to the provisions of Article 2Section 3.1, and the Certificate any Certificates so surrendered will shall forthwith be canceledcancelled. In If any portion of the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may Merger Consideration is to be issued paid to a person Person other than the person Person in whose name the surrendered Certificate so surrendered or the transferred Uncertificated Share is registered if registered, it shall be a condition to such payment that (I) either such Certificate is shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (II) the person Person requesting such issuance pays payment shall pay to the Paying Agent any transfer or other taxes Taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Share or establish to the satisfaction of FNB Parent that such tax Tax has been paid or is not applicablepayable. Until surrendered as contemplated by this Section 3.13.2(b), each Certificate will or Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of upon such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2surrender.
Appears in 1 contract
Sources: Merger Agreement
Exchange Procedures. No later than fifteen (i15) Not more than 45 days nor fewer than 30 business days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionTime, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if Company or the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares cause to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail delivered to each holder of record of: (i) a certificate or certificates which as of a Certificatesuch date (the “Determination Date”) evidenced outstanding shares of Company Capital Stock; or (ii) an instrument which as of the Determination Date evidenced an Eligible Derivative Security (such certificates and instruments collectively referred to herein as the “Instruments”), whose shares of SWVA Common Stock were securities will be converted into the right to receive Aggregate Merger Consideration and those who failed pursuant to return a properly completed Form Section 1.8, and, if applicable, cash in lieu of Election, fractional shares pursuant to Section 1.10: (iA) a letter of transmittal (which shall state that no shares of Company Capital Stock or Eligible Derivative Securities subject to the letter of transmittal have been or will be transferred by the holder thereof from and after the Determination Date and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Instruments shall pass, only upon proper delivery of the Certificates Instruments to the Exchange Agent and will be the effectiveness of the Merger substantially in such the form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) of Exhibit E (each a “Letter of Transmittal”); and (iiB) instructions for use in effecting to effect the surrender of the Certificates Instruments in exchange for their allocable portion of the Aggregate Merger Consideration.
. For the avoidance of doubt, no Company Stockholder or Company Derivative Security Holder shall have any liability (iiipersonally or otherwise) With respect to properly made elections for any breach of the representations and warranties of another Company Stockholder or Company Derivative Security Holder in accordance with Section 3.1(i)such person’s Letter of Transmittal or Derivative Security Documentation, and upon as applicable, or otherwise. Upon surrender in accordance with Section 3.1(ii) of a Certificate an Instrument for cancellation to the Exchange Agent, together with such letter the appropriate Letter of transmittalTransmittal and, in the case of Eligible Company Derivative Security Holders, all other Derivative Security Documentation, duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by such instructions, upon effectiveness of the Exchange AgentMerger, the a holder of such Certificate will Instruments shall be entitled to receive in exchange therefor his or her allocable portion of the Aggregate Merger Consideration that such holder has Consideration, and the right to receive pursuant to an allocation portion of the provisions of Article 2, Deferred Payments as set forth in Exhibit C and the Certificate Instruments so surrendered will shall forthwith be canceled. Until so surrendered, each outstanding Instrument that, prior to the Effective Time, evidenced shares of Company Capital Stock or an Eligible Derivative Security will be deemed from and after the Effective Time, for all corporate purposes, other than the payment of dividends or other distributions, to evidence the ownership of the allocable portion of the Aggregate Merger Consideration into which such shares of Company Capital Stock or such Eligible Derivative Security shall have been so converted. In the event of a transfer of ownership of Shares that are the Merger is not registered consummated by the Outside Closing Date or is terminated earlier in accordance with the transfer records of SWVAterms hereof, as unless otherwise agreed to in writing by the case may beStockholder Representative, payment may the Instruments shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes returned to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered Company Stockholders and Eligible Company Derivative Security Holders as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2appropriate.
Appears in 1 contract
Sources: Merger Agreement (Hologic Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime (and in any event within (x) five (5) Business Days in the case of registered holders and (y) three (3) Business Days in the case of the Depository Trust Company on behalf of beneficial holders holding through brokers, nominees, custodians or through a third party), the Exchange Surviving Corporation shall cause the Paying Agent will to mail (or in the case of the Depository Trust Company, deliver), to each person who was, at the Effective Time, a registered holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right Shares entitled to receive the Per Share Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 2.01(a): (i) a letter of transmittal in customary form for a Cayman Islands incorporated company specifying the manner in which the delivery of the Exchange Fund to registered holders of Shares (which will specify that delivery will other than Excluded Shares) shall be effected, and risk such letter of loss and title transmittal to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as Parent and the Exchange Agent Company (upon recommendation of the Special Committee) may specify consistent with this Agreement) reasonably agree; and (ii) instructions for use in effecting the surrender of share certificates representing the Shares (the “Share Certificates”) (or affidavits and indemnities of loss in lieu of the Share Certificates as provided in Section 2.04(c)), or non-certificated Shares represented by book entry ( the “Uncertificated Shares”) and/or such other documents as may be required in exchange for the Per Share Merger Consideration.
. Promptly after a Dissenting Shareholder has effectively withdrawn or lost his, her or its appraisal rights under the CICL, Parent shall cause the Paying Agent to mail to such Dissenting Shareholder such letter of transmittal and instructions. Upon surrender of, if applicable, any Share Certificate (iiior affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.04(c)) With respect or Uncertificated Shares and/or such other documents as may be required pursuant to properly made elections such instructions to the Paying Agent in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) the terms of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedexecuted in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the each registered holder of Shares represented by such Share Certificate will and each registered holder of Uncertificated Shares shall be entitled to receive in exchange therefor a check in the amount equal to (x) the number of Shares (other than Excluded Shares) represented by such Share Certificate (or affidavit and indemnity of loss in lieu of the Share Certificate as provided in Section 2.04(c)) or the number of Uncertificated Shares multiplied by (y) the Per Share Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2Consideration, and the any Share Certificate so surrendered will shall forthwith be canceledmarked as cancelled. Prior to the Effective Time, Parent and the Company (upon recommendation of the Special Committee) shall establish procedures with the Paying Agent and the Depositary (as defined below) to ensure that (i) the Paying Agent will transmit to the Depositary promptly following the Effective Time an amount in cash in immediately available funds equal to the product of (x) the number of ADSs issued and outstanding immediately prior to the Effective Time (other than ADSs representing Excluded Shares) and (y) the Per ADS Merger Consideration and (ii) the Depositary will distribute the Per ADS Merger Consideration to ADS holders (other than with respect to ADSs representing Excluded Shares) pro rata to their holdings of ADSs upon surrender by them of the ADSs. Pursuant to the Deposit Agreement, the ADS holders will pay any applicable fees, charges and expense of the Depositary and government charges (including any ADS cancellation or termination fee payable in accordance with the Deposit Agreement, but excluding withholding Taxes if any) due to or incurred by the Depositary in connection with the cancellation of the ADSs surrendered and distribution of the Per ADS Merger Consideration to ADS holders. No interest will be paid or accrued on any amount payable in respect of the Shares or ADSs. In the event of a transfer of ownership of Shares that are is not registered in the transfer records register of SWVAmembers of the Company, as a check for any cash to be exchanged upon due surrender of the case may be, payment Share Certificate may be issued to a person other than such transferee if the person in whose name Share Certificates (if any) which immediately prior to the Certificate so surrendered is registered if Effective Time represented such Certificate is properly endorsed or otherwise in proper form for Shares are presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and the person requesting such issuance pays to evidence that any applicable share transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is are not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 1 contract
Sources: Merger Agreement (Mindray Medical International LTD)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to At and after the Effective DateTime, First Nationaleach certificate (each, a "Certificate") previously representing shares of the Company Common Stock shall (except as specifically set forth in Section 1.4) represent only the exchange agent right to receive the Merger Consideration, without interest.
(b) At the Effective Time, Parent or Merger Sub shall deposit, or shall cause to be deposited, with a bank or trust company (which may be an affiliate of Parent or the Company) (the "Exchange Agent"), will mail a form for the benefit of election (the "Form holders of Election") to each shareholder of record of SWVA as of a record date as close as practicable the Certificates, an amount equal to the date product of mailing the Merger Consideration and mutually agreed the number of shares of the Company Common Stock entitled to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionreceive the Merger Consideration.
(c) Immediately after the Effective Time, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (mail or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail deliver to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Certificate or Certificates the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, following: (i) a letter of transmittal (which will specify specifying that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will Agent, which shall be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) a customary form; and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon the proper surrender in accordance with Section 3.1(ii) of a Certificate for cancellation or Certificates to the Exchange Agent, together with such a properly completed and duly executed letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will or Certificates shall be entitled to receive in exchange therefor a check in an amount equal to the product of the Merger Consideration that such holder has and the right to receive number of shares of the Company Common Stock represented by the Certificate or Certificates surrendered pursuant to the provisions of Article 2hereof, and the Certificate or Certificates so surrendered will shall forthwith be canceled. No interest shall be paid or accrue on the Merger Consideration. In the event of a transfer of ownership of Shares that are any shares of the Company Common Stock not registered in the transfer records of SWVAthe Company, as a check for the case may be, payment Merger Consideration may be issued to a person other than the person in whose name transferee if the Certificate representing such Company Common Stock is presented to Parent, accompanied by documents sufficient, in the discretion of Parent, (x) to evidence and effect such transfer, and (y) to evidence that all applicable stock transfer taxes have been paid. Parent shall be entitled to deduct and withhold from the Merger Consideration otherwise payable to any holder of Certificates such amounts (if any) as Parent determines are required under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of state, local or foreign tax law. To the extent that amounts are so surrendered is registered if withheld by Parent, such Certificate is properly endorsed or otherwise in proper form withheld amounts shall be treated for transfer and all purposes of this Agreement as having been paid to the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time Certificate.
(d) From and after the Effective Date Time, there shall be no transfers on the stock transfer records of the Company of any shares of the Company Common Stock that were outstanding immediately prior to represent only the right Effective Time. If, after the Effective Time, Certificates are presented to receive upon such surrender Parent or the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration that deliverable in respect thereof pursuant to this Agreement in accordance with the holder thereof has procedures set forth in this Section 1.5.
(e) If any Certificates shall not have been surrendered to Parent by the right to receive date six months after the Effective Time (or by such earlier date on which any payment in respect hereof would otherwise escheat or become the property of any governmental unit or agency), the payment in respect of such Certificate Certificates shall thereupon, 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. Any stockholders of the Company who have not theretofore complied with this Section 1.5 shall thereafter look only to the Surviving Corporation for payment of the Merger Consideration deliverable in respect of each share of the Company Common Stock held by such stockholder, as determined pursuant to this Agreement, without any interest thereon. Notwithstanding the provisions foregoing, none of Article 2. No interest will Parent, the Surviving Corporation or any other Person shall be paid or will accrue on liable to any cash payable former holder of the Company Common Stock for any amount delivered to holders of Certificates a public official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the provisions event any Certificate shall have been lost, stolen or destroyed, upon the making of Article 2an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond in such amount as Parent may direct as indemnity against any claim that may be made against it with respect to such Certificate, Parent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration deliverable in respect thereof pursuant to this Agreement.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be As promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime (but in no event more than two (2) business days thereafter), Parent, H&H Acquisition Sub and H&H Group shall cause the Exchange Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Certificate or Book-Entry Share (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or Book-Entry Shares shall pass, only upon proper delivery of the Certificates or Book-Entry Shares, as applicable, to the Exchange Paying Agent and will which shall otherwise be in such customary form and have such other (including customary provisions as the Exchange Agent may specify consistent with this Agreementrespect to delivery of an “agent’s message” with respect to Book-Entry Shares)) and (ii) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for the Merger Consideration.
(iiiConsideration and any dividends declared not in violation of Section 4.01(a) With with a record date prior to the Effective Time that remain unpaid at the Effective Time with respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) such Company Common Stock. Each holder of record of a Certificate for cancellation or Book-Entry Share shall, upon surrender to the Exchange AgentPaying Agent of such Certificate or Book-Entry Share, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that into which the number of shares of Company Common Stock represented by such holder has Certificate or such Book-Entry Share as of immediately prior to the Effective Time, as applicable, shall have been converted into the right to receive pursuant to Section 2.01(c), together with any dividends declared not in violation of Section 4.01(a) with a record date prior to the provisions of Article 2Effective Time that remain unpaid at the Effective Time with respect to such Company Common Stock, and the Certificate or Book-Entry Share so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are Company Common Stock which is not registered in the transfer records of SWVA, as the case may beCompany, payment of the Merger Consideration, together with any dividends declared not in violation of Section 4.01(a) with a record date prior to the Effective Time that remain unpaid at the Effective Time with respect to such Company Common Stock, may be issued made to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such issuance pays payment shall pay any transfer or other similar taxes required by reason of the payment of the Merger Consideration, together with any such payment dividends to a person other than the registered holder of such Certificate or establishes establish to the reasonable satisfaction of FNB H&H Group that such tax has been paid or is not applicable. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the person in whose name such Book-Entry Shares are registered. Until surrendered as contemplated by this Section 3.12.02(b), each Certificate will or Book-Entry Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration Consideration, together with any dividends declared not in violation of Section 4.01(a) with a record date prior to the Effective Time that remain unpaid at the Effective Time with respect to such Company Common Stock, which the holder thereof has the right to receive in respect of such Certificate or Book-Entry Share pursuant to the provisions of this Article 2II. No interest will shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article 2II. Prior to the Effective Time, Parent, H&H Group, H&H Acquisition Sub and the Company shall cooperate to establish procedures with the Paying Agent and Broadridge Financial Solutions, Inc. (“Broadridge”) to provide that the Paying Agent will transmit to Broadridge or its nominee as promptly as practicable after the Merger Closing (and, in any event, no later than the first (1st) business day after the Merger Closing) an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by Broadridge or such nominee immediately prior to the Effective Time multiplied by the Per Share Merger Consideration. As promptly as practicable after the Effective Time (but in any event within one (1) business day thereafter), Parent, H&H Acquisition Sub and H&H Group shall cause the Paying Agent to disburse by wire transfer of immediately available funds to an account designated in writing by the Company prior to the Merger Closing an amount equal to the Award Amounts (other than the Award Amounts pursuant to Section 2.03(b)).
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime, Parent shall cause the Exchange Paying Agent will to mail to each holder of record of (i) a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), in each case, which at the Effective Time were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 3.1, (iA) a letter of transmittal (which will which, in the case of Certificates, shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Paying Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (iiB) instructions for use in effecting the surrender of the Certificates or Uncertificated Shares in exchange for the Merger Consideration.
. Upon (iii1) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate Certificates for cancellation to the Exchange AgentPaying Agent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal, duly executedcompleted and validly executed in accordance with the instructions thereto or (2) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration that (less applicable withholding Taxes) to which such holder has the right to receive is entitled pursuant to the provisions of Article 2Section 3.1, and the Certificate any Certificates so surrendered will shall forthwith be canceledcancelled. In If any portion of the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may Merger Consideration is to be issued paid to a person Person other than the person Person in whose name the surrendered Certificate so surrendered or the transferred Uncertificated Share is registered if registered, it shall be a condition to such payment that (I) either such Certificate is shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (II) the person Person requesting such issuance pays payment shall pay to the Paying Agent any transfer or other taxes Taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Share or establish to the satisfaction of FNB Parent that such tax Tax has been paid or is not applicablepayable. Until surrendered as contemplated by this Section 3.13.2(b), each Certificate will or Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of (less any applicable withholding Taxes as provided herein), without interest, upon such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2surrender.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, but in any event not later than three (3) Business Days thereafter, the Exchange Agent will shall mail to each holder of record of a Certificatecertificate or certificates which immediately prior to the Effective Time represented outstanding Company Shares (the “Certificates”) and to each holder of record of uncertificated Company Shares (the “Uncertificated Shares”), in each case whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.2, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or the Uncertificated Shares shall pass, only upon delivery of the Certificates or the transfer of the Uncertificated Shares to the Exchange Agent and will shall be in such form and have such other provisions as the Exchange Agent Parent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting surrendering the surrender Certificates or transfer of the Certificates Uncertificated Shares in exchange for the Merger Consideration.
. Each holder of record of shares of Company Common Stock that shall have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share, upon (iiii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, or (ii) receipt of an “agent’s message” by the holder Exchange Agent (or such other evidence, if any, of such Certificate will be entitled to receive transfer as the Exchange Agent may reasonably request), in exchange therefor the case of a book-entry transfer of Uncertificated Shares. Upon payment of the Merger Consideration that such holder has the right to receive pursuant to the provisions of this Article 2, and the each Certificate or Uncertificated Share so surrendered will or transferred shall forthwith be canceled. In Notwithstanding the foregoing, in the event of a transfer of ownership of Shares Company Common Stock that are is not registered in the transfer records of SWVA, as the case may beCompany, payment of the Merger Consideration may be issued made to a person Person other than the person Person in whose name the Certificate so surrendered or the Uncertificated Shares so transferred is registered if such Certificate is properly endorsed or otherwise in proper form for such Uncertificated Shares shall be accompanied by (A) all documents required to evidence and effect such transfer and the person requesting such issuance pays (B) payment of any transfer or other taxes Taxes required by reason of such the payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Shares, unless such registered holder shall otherwise establish to the satisfaction of FNB Parent that such tax has Taxes shall have been paid or is are not applicable. Until surrendered as contemplated by this Section 3.1, Each Certificate and each Certificate will Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender in accordance with this Section 2.3 the Merger Consideration that into which the holder thereof has the right to receive in respect of such Certificate Company Shares shall have been converted pursuant to the provisions of Article 2Section 2.2. No interest will shall be paid or will shall accrue on any cash payable to holders of Certificates or Uncertificated Shares pursuant to the provisions of this Article 2.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to As soon as practicable after the Effective Date, First National, as ------------------- Time of the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionMerger, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, certificate or certificates which immediately prior to the Effective Time of the Merger represented outstanding shares of PVI Common (the "Certificates") whose shares of SWVA Common Stock were are being converted into the right Consideration pursuant to receive Merger Consideration and those who failed to return a properly completed Form of ElectionSection 2.3 hereof, (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent and will shall be in such form and have such other provisions as IMSL and/or the Exchange Agent may specify consistent with this Agreementreasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent or to such other agent or agents as may be appointed by IMSL, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor there for the Merger Consideration that such to which the holder has the right to receive of PVI Common is entitled pursuant to the provisions of Article 2, and the Section 2.3 hereof. The Certificate so surrendered will shall forthwith be canceledcancelled. In the event of a transfer of ownership owner ship of Shares that are PVI Common which is not registered in the transfer records of SWVAPVI, as the case may be, payment appropriate amount of Consideration may be issued delivered to a person other than the person in whose name transferee if the Certificate so surrendered representing such PVI Common is registered if presented to the Exchange Agent and accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays to evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered surren dered as contemplated by this Section 3.12.4, each Certificate will shall be deemed at any time after the Effective Date Time of the Merger to represent only solely the right to receive upon such surrender the Merger Consideration that or to perfect the holder thereof has the holder's right to receive in respect of payment for such Certificate stock pursuant to Section 262 of the provisions of Article 2. No interest will Delaware General Corporation Law and Section 2.3 hereof; provided, however, that customary and appropriate certifications and indemnities allowing exchange against loss or destroyed certificates shall be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2provided.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Visual Numerics Inc)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to Following the Effective Closing Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Acquiror shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificatecertificate(s) or other documents which represent Target Shares (the "Certificates"), whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed be exchanged pursuant to return a properly completed Form of Election, Section 2.2 hereof (i) a letter of transmittal (which will shall specify that that, with respect to the Certificates, delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon delivery of the Certificates to the Exchange Agent Acquiror and will shall be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementAcquiror shall reasonably require) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon Acquiror Shares. Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAcquiror, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor his pro rata allocation of the Merger Consideration that Acquiror Shares as to which such holder has the right to receive is entitled pursuant to the provisions of Article 2, and the Certificate Section 2.2 hereof. Certificates so surrendered will pursuant to this Section 2.3 shall forthwith be canceledcanceled (if not otherwise canceled or terminated in accordance with their terms). In the event of a transfer of ownership of Target Shares that are which is not registered in on the transfer records of SWVATarget, as the case may be, payment appropriate number of Acquiror Shares may be issued delivered to a person other than the person in whose name transferee if the Certificate so surrendered representing such transferred security is registered if presented to Acquiror and accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays to evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.12.3, each Certificate will shall be deemed at any time after the Effective Date Time to represent only solely the right to receive upon such surrender that number of Acquiror Shares (without interest and subject to applicable withholding, escheat and other laws) to which such holder is entitled.
(b) Notwithstanding anything to the Merger Consideration contrary in this Section 2.3, none of Acquiror, the Surviving Corporation or any party hereto shall be liable to a holder of Target Shares for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
(c) The Acquiror Shares issued in accordance with the terms hereof shall be deemed to be in full satisfaction of all rights pertaining to such Target Shares, and there shall be no further registration of transfers on the records of the Surviving Corporation of Target Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in Section 2.2.
(d) In the event any Certificates evidencing Target Shares shall have been lost, stolen or destroyed, Acquiror shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof has thereof, such holder's pro rata allocation of Acquiror Shares, as may be required pursuant to Section 2.2; provided, however, that Acquiror may, in its discretion and as a condition precedent to the right to receive in respect issuance thereof, require the owner of such Certificate pursuant lost, stolen or destroyed Certificates to deliver a bond (or in Acquiror's reasonable discretion, an indemnity agreement) in such sum as it may reasonably direct as indemnity against any claim that may be made against Acquiror with respect to the provisions of Article 2. No interest will be paid Certificates alleged to have been lost, stolen or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2destroyed.
Appears in 1 contract
Sources: Merger Agreement (Emusic Com Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable Promptly after the Effective DateTime (and in no event later than two (2) Business Days thereafter), Parent shall direct the Exchange Paying Agent will to mail to each person who was, at the Effective Time, a holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right Shares entitled to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of Election, Section 3.01(a): (i) a letter of transmittal (which will shall be in customary form and shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will Shares shall pass, only upon proper delivery of the Certificates Shares to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementPaying Agent) and (ii) instructions for use in effecting the surrender of the Certificates certificates formerly evidencing such Shares (each, a “Certificate” and, together, the “Certificates”) or the non-certificated Shares represented by book-entry (“Book-Entry Shares”) in exchange for the Merger Consideration.
. Upon proper surrender of Certificates (iiior effective affidavits of loss and delivery of an indemnity bond reasonable in amount, if reasonably requested by Parent, in lieu thereof pursuant to Section 3.02(e)) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentPaying Agent for cancellation, together with such letter of transmittal, duly executed, completed and validly executed in accordance with the instructions thereto (and such other documents as may reasonably customarily be required by the Exchange Paying Agent), the former holder of such Certificate will Shares shall be entitled to receive in exchange therefor the Merger Consideration that which such holder has the right to receive pursuant to the provisions of Article 2Section 3.01(a), and the Certificate Certificates so surrendered will shall forthwith be canceledcancelled. In the event of a transfer of ownership of Shares that are is not registered in the transfer records of SWVA, as the case may beCompany, payment of the Merger Consideration may be issued made to a person other than the person in whose name the Certificate or Book-Entry Share so surrendered is registered if the Certificate or Book-Entry Share representing such Certificate is properly endorsed Shares shall be presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer or otherwise be in proper form for transfer transfer, and the person requesting such issuance pays payment shall pay any transfer or other taxes Taxes required solely by reason of such the payment of the Merger Consideration to a person other than the registered holder of such Certificate or establishes Book-Entry Share or establish to the reasonable satisfaction of FNB Parent that such tax Tax has been paid or is not applicable. Until properly surrendered as contemplated by this Section 3.13.02, each Certificate will or Book-Entry Share shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that to which the holder thereof has the right to receive in respect of such Certificate or Book-Entry Share is entitled pursuant to the provisions of this Article 2III. No interest will shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article 2III. Notwithstanding anything to the contrary in this Section 3.02, any holder of Book-Entry Shares shall not be required to deliver a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to this Article III. In lieu thereof, each registered holder of one or more Book-Entry Shares shall upon receipt by the Paying Agent of an “agent’s” message in customary form (or such other evidence, if any, as the Paying Agent or Parent may reasonably require) be entitled to receive, and the Surviving Company shall cause the Paying Agent to pay and deliver as soon as reasonably practicable after receipt of such agent’s message (or such other evidence, if any, as the Paying Agent or Parent may reasonably require), the Merger Consideration for each Book-Entry Share.
Appears in 1 contract
Sources: Merger Agreement (Aegion Corp)
Exchange Procedures. As promptly as practicable, but in any event within ten (i10) Not more than 45 days nor fewer than 30 days prior to Business Days after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail send to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into immediately prior to the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time (ia) a letter of transmittal which (which will i) shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will any Certificate or Uncertificated Shares shall pass, only upon proper delivery of such Certificate or Uncertificated Shares, as the Certificates case may be, to the Exchange Agent and will (ii) shall be in such customary form and have such other provisions as the Exchange Agent Parent may reasonably specify consistent with this Agreement) and (iib) instructions for use in effecting the surrender of any Certificate or the Certificates transfer of any Uncertificated Shares in exchange for the Merger Consideration.
. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (iiix) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent of a Certificate, together with such a duly executed and completed letter of transmittal, duly executedor (y) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, and such if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, in each case, together with any other documents as may be reasonably be required requested by the Exchange Agent, the Merger Consideration in respect of the Company Common Stock represented by such Certificate or Uncertificated Shares, and such surrendered Certificate or transferred Uncertificated Shares shall be forthwith canceled and cease to exist. The shares of Parent Common Stock constituting Merger Consideration, at Parent’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of such Certificate shares of Company Common Stock or is otherwise required under Applicable Law. No interest will be entitled to receive in exchange therefor paid or will accrue on the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceledConsideration. In the event of a transfer of ownership of Shares that are shares of Company Common Stock which is not registered in the transfer records of SWVAthe Company (such shares, as the case may be“Unregistered Transferred Shares”), payment the aggregate Merger Consideration that the holder of record of such Unregistered Transferred Shares has the right to receive with respect thereto pursuant to Section 1.8 may be issued and paid to a person other than the person in whose name transferee of such Unregistered Transferred Shares if (A) the Certificate so surrendered representing such Unregistered Transferred Shares is registered if presented to the Exchange Agent accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and (B) the person Person requesting such issuance pays payment of Merger Consideration shall (1) pay to the Exchange Agent any applicable stock transfer or other taxes required by reason as a result of such payment to a person Person other than the registered holder of such Certificate Unregistered Transferred Shares or establishes (2) establish to the reasonable satisfaction of FNB the Exchange Agent that such tax has stock transfer taxes have been paid or is are not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 1 contract
Exchange Procedures. (i) Not Promptly, but in no event more than 45 days nor fewer than 30 days three (3) Business Days, following the date the Registration Statement is declared effective by the SEC, Public Company shall cause the Exchange and Paying Agent to mail to each Person who was a member of Merger Partner or any Blocker as of immediately prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form effective time of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Electionrespective Mergers, (i) a letter Letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Transmittal and (ii) instructions for use in effecting the surrender issuance of the Certificates in exchange for portion of the Merger Consideration.
(iii) With , as applicable, payable with respect thereto pursuant to properly made elections the terms of this Agreement and the Allocation Schedule. Upon proper delivery of a duly completed and executed Letter of Transmittal, each such Person shall be entitled to receive the number of shares of Public Company Class A Common Stock, shares of Public Company Class B Common Stock and Merger Partner Common Units as determined in accordance with Section 3.1(i), 2.1 and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation reflected on the Allocation Schedule. If payment is to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued made to a person Person other than the person Person who is reflected in whose name the Certificate so surrendered is registered if books and records of the applicable company as the applicable member, it shall be a condition of payment that the Person requesting such Certificate is properly endorsed or otherwise in proper form for payment shall have established to the satisfaction of Public Company and the Exchange and Paying Agent that any transfer and the person requesting such issuance pays any transfer or other taxes Taxes required by reason of such payment to a person Person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has applicable member have been paid or is are not applicable. Until surrendered From and after the Merger Partner Merger Effective Time, or each applicable Blocker Merger Effective Time, as applicable, other than Electing Members (with respect to Excluded Units) each Person that was a member of Merger Partner or the corresponding Blocker being merged, respectively (or the holder of an economic interest therein) shall have no rights as a member or holder of any such economic interests and, until the procedures contemplated by this Section 3.12.2 have been complied with, each Certificate will be deemed at any time after the Effective Date to such former limited liability company or economic interest shall represent only the right to receive upon such surrender the applicable portion of the Merger Consideration that Consideration, respectively, on the holder thereof has the right to receive in respect of such Certificate pursuant terms and subject to the provisions conditions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Calyxt, Inc.)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior Prior to the Effective DateClosing, First National, as the SPAC shall appoint an exchange agent ("the “Exchange Agent")”) consented to by the Company (such consent not to be unreasonably withheld, will mail a form conditioned or delayed) to act as the agent for the purpose of election paying the Merger Consideration (other than the "Form of Election"Earn Out Shares) to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date Company’s stockholders (the "Election Deadline"“Aggregate Merger Consideration”); provided, a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for however, that SPAC shall afford the shares Company the opportunity to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by review any proposed Contract with the Exchange Agent prior to 5:00 p.m. on execution, and shall accept the Election Deadline. If an election is so revokedCompany’s reasonable comments thereto.
(b) At the Effective Time, the Certificate(s) Surviving Pubco (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to acting by the Exchange Agent) will promptly issue and allot, credited as fully paid, or cause to be issued and allotted, credited as fully paid, to the Pre-Closing Holders (and the Company will direct the Exchange Agent to take all necessary action to record and effect the same) the number of shares of Surviving Pubco Class A Common Stock equal to Merger Consideration in accordance with the Allocation Schedule, in each case in book-entry form (which shall have a customary Securities Act restrictive legend), unless otherwise reasonably requested by the Company.
(iic) As soon as reasonably practicable after If any portion of the Merger Consideration is to be issued to a Person other than the Person in whose name the relevant Company Common Stock was registered on the books and records of the Company immediately prior to the Effective DateTime, the Exchange Agent will mail it shall be a condition to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, such delivery that (i) a letter the transfer of transmittal (which will specify that delivery will be effectedsuch Company Common Stock shall have been permitted in accordance with the terms of the Company’s Organizational Documents, and risk of loss and title as in effect immediately prior to the Certificates will passEffective Time, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions if applicable, the certificate representing such Company Common Stock shall be properly endorsed or shall otherwise be in proper form for use in effecting transfer, (iii) the surrender recipient of the Certificates in exchange for such portion of the Merger Consideration.
(iii) With respect , or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may are reasonably be required deemed necessary by the Exchange AgentSurviving Entity or the Company, and (iv) the holder of Person requesting such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant delivery shall pay to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays Company any transfer or other taxes Taxes required by reason as a result of such payment delivery to a person Person other than the registered holder of such Certificate Company Common Stock or establishes establish to the satisfaction of FNB the Surviving Entity and the Company that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2payable.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior Promptly after the Effective Time, Buyer shall deposit with the Exchange Agent, for exchange in accordance with this Section 3.3, the Merger Consideration and cash in an aggregate amount sufficient for payment in lieu of fractional shares of Buyer Common Stock to which holders of CBG Common Stock may be entitled pursuant to Section 3.7. In addition, Buyer shall make available to the Effective Date, First NationalExchange Agent, as necessary from time to time at or after the exchange agent Effective Time, any dividends or other distributions payable pursuant to Section 3.3(f). All Merger Consideration ("including cash in an aggregate amount sufficient for payment in lieu of fractional shares of Buyer Common Stock to which holders of CBG Common Stock may be entitled pursuant to Section 3.7) and dividends and distributions made available to the Exchange Agent"Agent pursuant to this Section 3.3(a) shall hereinafter be referred to as the “Exchange Fund.” In the event the cash in the Exchange Fund is insufficient to fully satisfy all of the payment obligations to be made by the Exchange Agent hereunder (including pursuant to Section 3.7), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable Buyer shall promptly make available to the date of mailing and mutually agreed Exchange Agent the amounts so required to by SWVA and FNBsatisfy such payment obligations in full. The Exchange Agent shall enter into a written agreement with FNB deliver the Merger Consideration and SWVA detailing its duties and responsibilities and shall furnish evidence cash in lieu of liability insurance for such activities in a form substantially similar to Exhibit B. In additionany fractional shares of Buyer Common Stock out of the Exchange Fund. Except as contemplated by this Section 3.3, the Exchange Agent Fund will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") not be used for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agentany other purpose.
(iib) As Unless different timing is agreed to by Buyer and CBG, as soon as reasonably practicable after the Effective DateTime, but in any event no more than seven business days after the Effective Time, Buyer shall cause the Exchange Agent will to mail to each holder the former shareholders of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of CBG appropriate transmittal materials (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or other instruments theretofore representing shares of CBG Common Stock shall pass, only upon proper delivery of the such Certificates to the Exchange Agent and will be in such form and have such or other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation instruments to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled). In the event of a transfer of ownership of Shares shares of CBG Common Stock represented by one or more Certificates that are not registered in the transfer records of SWVACBG, the Per Share Purchase Price payable for such shares as provided in Sections 3.1 and 3.2 may be issued to a transferee if the Certificate or Certificates representing such shares are delivered to the Exchange Agent, accompanied by all documents required to evidence such transfer and by evidence reasonably satisfactory to the Exchange Agent that such transfer is proper and that any applicable stock transfer taxes have been paid. In the event any Certificate representing CBG Common Stock shall have been lost, mutilated, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen, mutilated, or destroyed and the posting by such Person of a bond in such amount as Buyer may reasonably direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall issue in exchange for such lost, mutilated, stolen, or destroyed Certificate the Per Share Purchase Price as provided for in Sections 3.1 and 3.2 (together with any unpaid dividends or distributions with respect thereto). The Exchange Agent may establish such other reasonable and customary rules and procedures in connection with its duties as it may deem appropriate. Buyer shall pay all charges and expenses, including those of the Exchange Agent in connection with the distribution of the Per Share Purchase Price as provided in Sections 3.1 and 3.2. Buyer or the Exchange Agent will maintain a book entry list of Buyer Common Stock to which each former holder of CBG Common Stock is entitled. Certificates evidencing Buyer Common Stock into which CBG Common Stock has been converted will not be issued.
(c) After receipt of the transmittal materials from the Exchange Agent, each holder of shares of CBG Common Stock (other than Extinguished Shares) issued and outstanding at the Effective Time shall surrender the Certificate or Certificates representing such shares to the Exchange Agent, together with duly executed transmittal materials provided by the Exchange Agent, and shall promptly upon surrender thereof (or the delivery of an affidavit and a bond in lieu thereof as provided in Section 3.3(b)), if any of such Certificates are lost, stolen, mutilated or destroyed) receive in exchange therefor the consideration provided in Sections 3.1 and 3.2 (and any unpaid dividends or distributions thereon), without interest, pursuant to this Section 3.3. The Certificate or Certificates of CBG Common Stock so surrendered shall be duly endorsed as the Exchange Agent may reasonably require. Buyer shall not be obligated to deliver the consideration to which any former holder of CBG Common Stock is entitled as a result of the Merger until such holder surrenders such holder’s Certificate or Certificates for exchange ((or the delivery of an affidavit and a bond in lieu thereof as provided in Section 3.3(b)), if any of such Certificates are lost, stolen, mutilated or destroyed) as provided in this Section 3.3. Similarly, no dividends or other distributions in respect of the Buyer Common Stock shall be paid to any holder of any unsurrendered Certificate or Certificates until such Certificate or Certificates (or the delivery of an affidavit and a bond in lieu thereof as provided in Section 3.3(b)), if any of such Certificates are lost, stolen, mutilated or destroyed) are surrendered for exchange as provided in this Section 3.3. Any other provision of this Agreement notwithstanding, neither any Buyer Entity, nor any CBG Entity, nor the Exchange Agent shall be liable to any holder of CBG Common Stock for any amounts paid or properly delivered in good faith to a public official pursuant to any applicable abandoned property, escheat, or similar Law.
(d) Each of Buyer and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of CBG Common Stock, CBG Options or CBG Warrants such amounts, if any, as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, or foreign Tax Law or by any Taxing Authority or Governmental Authority. To the extent that any amounts are so withheld by Buyer or the Exchange Agent, as the case may be, payment may such withheld amounts shall be issued treated for all purposes of this Agreement as having been paid to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of the shares of CBG Common Stock, CBG Options or CBG Warrants, as applicable, in respect of which such Certificate deduction and withholding was made by Buyer or establishes the Exchange Agent, as the case may be.
(e) Any portion of the Merger Consideration and cash delivered to the satisfaction Exchange Agent by Buyer pursuant to Section 3.3(a) that remains unclaimed by the holder of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time shares of CBG Common Stock for six months after the Effective Date Time (as well as any proceeds from any investment thereof) shall be delivered by the Exchange Agent to represent Buyer. Any holder of shares of CBG Common Stock who has not theretofore complied with Section 3.3(c) shall thereafter look only to Buyer for the right consideration deliverable in respect of each share of CBG Common Stock such holder holds as determined pursuant to this Agreement without any interest thereon. If outstanding Certificates for shares of CBG Common Stock are not surrendered or the payment for them is not claimed prior to the date on which such Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable law, become the property of Buyer (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property. Neither the Exchange Agent nor any Party to this Agreement shall be liable to any holder of stock represented by any Certificate for any consideration paid to a Governmental Authority pursuant to applicable abandoned property, escheat or similar laws. Buyer and the Exchange Agent shall be entitled to rely upon the stock transfer books of CBG to establish the identity of those Persons entitled to receive upon the consideration specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of stock represented by any Certificate or Certificates, Buyer and the Exchange Agent shall be entitled to deposit any consideration represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(f) No dividends or other distributions with respect to Buyer Common Stock shall be paid to the holder of any unsurrendered certificate that immediately prior to the Effective Time represented shares of CBG Common Stock with respect to the shares, if any, of Buyer Common Stock represented thereby, in each case unless and until the surrender of such certificate (or the delivery of an affidavit and a bond in lieu thereof as provided in Section 3.3(b)) if any of such certificates are lost, stolen, mutilated or destroyed) in accordance with this Section 3.3. Subject to the effect of applicable abandoned property, escheat or similar Laws, following surrender of any such certificate in accordance with this Section 3.3 (or the Merger Consideration that delivery of an affidavit and a bond as provided in Section 3.3(b)), the holder thereof has shall be entitled to receive, without interest, (i) the right to receive in amount of dividends or other distributions with a record date after the Effective Time theretofore payable and that have not been paid with respect of such Certificate pursuant to the provisions whole shares of Article 2. No interest will be paid Buyer Common Stock into which the shares of CBG Common Stock represented by such certificate are converted and/or (ii) at the appropriate payment date, the amount of dividends or will accrue on any cash payable to holders of Certificates pursuant other distributions with a record date after the Effective Time (but before such surrender date) and with a payment date subsequent to the provisions issuance of Article 2the Buyer Common Stock payable with respect to whole shares of Buyer Common Stock into which the shares of CBG Common Stock represented by such certificate are converted.
(g) Adoption of this Agreement by the shareholders of CBG shall constitute ratification of the appointment of the Exchange Agent.
Appears in 1 contract
Exchange Procedures. (a) At the Effective Time, (i) Not more than 45 days nor fewer than 30 days prior the holders of the Purchaser Common Stock will surrender their stock certificates or other instruments representing the Purchaser Common Stock (collectively, the “Purchaser Certificates”) and (ii) the holders of the Company Units will surrender their membership certificates or other instruments representing the Company Units, if any, and written acknowledgement of the termination of their rights to such Company Units (collectively, the Effective Date, First National, as the exchange agent ("Exchange Agent"“Company Certificates”), will mail a form of election (or in the "Form of Election") to each shareholder of record of SWVA as case of a record date as close as practicable to lost, stolen or destroyed Purchaser Certificate or Company Certificate, upon delivery of Lost Certificate Affidavit (and indemnity, if required) in the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities manner provided in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"Section 1.11(g), a Form of Election properly completed and accompanied to Pubco for cancellation together with any related documentation reasonably requested by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth Pubco in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agentconnection therewith.
(iib) As soon Certificates representing the shares of Pubco Common Stock shall be issued to the holders of Company Units and Purchaser Common Stock upon surrender of the Company Certificates and Purchaser Certificates as reasonably practicable after provided for herein or otherwise agreed by the Effective DateParties. Upon surrender of the Company Certificates and Purchaser Certificates (or in the case of a lost, stolen or destroyed Company Certificate or Purchaser Certificate, upon delivery of a Lost Certificate Affidavit (and indemnity, if required) in the Exchange Agent will mail manner provided in Section 1.11(g)) for cancellation to Pubco or to such other agent or agents as may be appointed by Pubco, Pubco shall issue, or cause to be issued, to each holder of record the Company Certificates and Purchaser Certificates such certificates representing the number of a Certificate, whose shares of SWVA Pubco Common Stock were converted into for which their Company Units and Purchaser Common Stock, respectively, are exchangeable at the Effective Time and any dividends or distributions payable pursuant to Section 1.11(f), and the Company Certificates and the Purchaser Certificates so surrendered shall forthwith be canceled. Until so surrendered, outstanding Company Certificates will be deemed, from and after the Effective Time, to evidence only the right to receive the applicable portion of the Merger Consideration (as it may be adjusted after the Closing pursuant to Section 1.15) pursuant to this Article I.
(c) If certificates representing the shares of Pubco Common Stock are to be issued in a name other than that in which the Company Certificates or Purchaser Certificates surrendered in exchange therefor are registered, it will be a condition of the issuance thereof that the Company Certificates or Purchaser Certificates so surrendered will be properly endorsed and those who failed otherwise in proper form for transfer and that the persons requesting such exchange will have paid to return a properly completed Form Pubco or any agent designated by it any transfer or other taxes required by reason of Electionthe issuance of certificates representing the shares of Pubco Common Stock in any name other than that of the registered holder of the Company Certificates or Purchaser Certificates surrendered, or established to the satisfaction of Pubco or any agent designated by it that such tax has been paid or is not payable.
(id) Promptly after the date hereof, the Company shall send to each holder of Company Units a letter of transmittal for use in exchanging Company Certificates for the applicable portion of the Merger Consideration in the form attached hereto as Exhibit C (a “Letter of Transmittal”) (which will shall specify that the delivery will of share certificates in respect of the Merger Consideration shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementPubco (or a Lost Certificate Affidavit)) and (ii) instructions for use in effecting the surrender such exchange. Each Company Unitholder shall be entitled to receive its Pro Rata Share of the Certificates Merger Consideration in exchange for respect of the Merger Consideration.
Company Units represented by the Company Certificate(s) (iii) With respect to properly made elections excluding any equity securities described in accordance with Section 3.1(i1.9(b)), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation as soon as reasonably practicable after the Effective Time, but subject to the Exchange Agentdelivery to Pubco of the following items (collectively, the “Transmittal Documents”): (i) the Company Certificate(s) for its Company Units (or a Lost Certificate Affidavit), together with such letter a properly completed and duly executed Letter of transmittal, duly executed, Transmittal and such other documents as may be reasonably be required requested by the Exchange Agent, the holder of such Certificate will be entitled Pubco and (ii) a duly executed counterpart to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2, a lock-up agreement with Pubco and the Certificate so surrendered will forthwith be canceled. In Purchaser Representative, effective as of the event of a transfer of ownership of Shares that are not registered Effective Time, substantially in the transfer records of SWVA, form attached as the case may be, payment may be issued to Exhibit D hereto (each a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable“Lock-Up Agreement”). Until surrendered as contemplated by this Section 3.1so surrendered, each Company Certificate will be deemed at any time shall represent after the Effective Date to represent Time for all purposes only the right to receive upon such surrender portion of the Merger Consideration that the holder thereof has the right attributable to receive in respect of such Certificate pursuant Company Certificate.
(e) Notwithstanding anything to the provisions contrary contained herein, no fraction of Article 2. a share of Pubco Common Stock will be issued by Pubco by virtue of this Agreement or the transactions contemplated hereby (including the Earnout Share Payments), and each Person who would otherwise be entitled to a fraction of a share of Pubco Common Stock (after aggregating all fractional shares of Pubco Common Stock that otherwise would be received by such holder) shall instead have the number of shares of Pubco Common Stock issued to such Person rounded down in the aggregate to the nearest whole share of Pubco Common Stock.
(f) No interest dividends or other distributions declared or made with respect to Pubco Common Stock with a record date after the Effective Time will be paid or will accrue on any cash payable to the holders of any Company Certificates or Purchaser Certificates that have not yet been surrendered with respect to the shares of Pubco Common Stock to be issued upon surrender thereof until the holders of record of such Company Certificates or Purchaser Certificates shall surrender such certificates. Subject to applicable Law, following surrender of any such Company Certificates or Purchaser Certificates, Pubco shall promptly deliver to the record holders thereof, without interest, the certificates representing the shares of Pubco Common Stock issued in exchange therefor and the amount of any such dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of Pubco Common Stock.
(g) In the event any Company Certificate or Purchaser Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (a “Lost Certificate Affidavit) by the Person claiming such Company Certificate or Purchaser Certificate to be lost, stolen or destroyed and, if required by Pubco, the posting by such Person of a bond in customary amount and upon such terms as may be reasonably required by Pubco as indemnity against any claim that may be made against it with respect to such Company Certificate or Purchaser Certificate, Pubco will issue or cause to be issued the number of shares of Pubco Common Stock for which such lost, stolen or destroyed Company Certificates or Purchaser Certificates are exchangeable at the Effective Time and any dividends or distributions payable pursuant to the provisions of Article 2Section 1.11(f).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Benessere Capital Acquisition Corp.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime but in any event not later than five Business Days thereafter, the Exchange Agent will shall mail to each holder of record of a Certificatecertificate or certificates which immediately prior to the Effective Time represented outstanding shares of Company Common Stock (the “Certificates”) and to each holder of uncertificated shares of Company Common Stock (the “Uncertificated Shares”), in each case whose shares of SWVA Common Stock were converted into the right to receive the Merger Consideration and those who failed pursuant to return a properly completed Form of ElectionSection 2.2(a), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will or the Uncertificated Shares shall pass, only upon delivery of the Certificates or the transfer of the Uncertificated Shares to the Exchange Agent and will shall be in such customary form and have such other provisions as Parent and the Exchange Agent Company may specify consistent with this Agreementmutually agree) and (ii) instructions for use in effecting surrendering the surrender Certificates or transfer of the Certificates Uncertificated Shares in exchange for the Merger Consideration.
. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share, upon (iiiA) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, or (B) receipt of an “agent’s message” by the holder Exchange Agent (or such other evidence, if any, of such Certificate will be entitled to receive transfer as the Exchange Agent may reasonably request), in exchange therefor the case of a book-entry transfer of Uncertificated Shares. Upon payment of the Merger Consideration that such holder has the right to receive pursuant to the provisions of this Article 2, and the each Certificate or Uncertificated Share so surrendered will or transferred shall forthwith be canceled. In the event of a transfer of ownership of Shares Company Common Stock that are is not registered in the transfer records of SWVA, as the case may beCompany, payment may be issued made to a person Person other than the person Person in whose name the Certificate so surrendered or the Uncertificated Shares so transferred is registered if such Certificate is shall be properly endorsed or otherwise be in proper form for transfer or such Uncertificated Shares shall be properly transferred and the person Person requesting such issuance pays shall pay any transfer or other taxes Taxes (as defined below) required by reason of such the payment to a person Person other than the registered holder of such Certificate or establishes Uncertificated Shares or establish to the satisfaction of FNB Parent that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, Each Certificate and each Certificate will Uncertificated Share shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender in accordance with this Section 2.3 the Merger Consideration that into which the holder thereof has the right to receive in respect shares of Company Common Stock represented by such Certificate or Uncertificated Shares shall have been converted pursuant to the provisions of Article 2Section 2.2. No interest will shall be paid or will shall accrue on any cash payable to holders of Certificates or Uncertificated Shares pursuant to the provisions of this Article 2.
Appears in 1 contract
Sources: Merger Agreement (Sauer Danfoss Inc)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly following the Effective Date, First National, as Time (but in no event later than three (3) Business Days following the exchange agent ("Exchange Agent"Effective Time), will mail a form of election (Parent shall instruct the "Form of Election") Paying Agent to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose certificate or certificates which immediately prior to the Effective Time represented outstanding shares of SWVA Company Common Stock were converted into (the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, "Certificates")
(i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent and will shall be in subject to the consent of the Company prior to the Effective Time, such form and have such other provisions as the Exchange Agent may specify consistent with this Agreementconsent not to be unreasonably withheld) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, Paying Agent together with such letter of transmittal, properly completed and duly executed, and such other documents as may be reasonably required pursuant to such instructions (or, if such shares are held in book-entry or other uncertificated form, upon the entry through a book-entry transfer agent of the surrender of such shares on a book-entry account statement (it being understood that any references herein to "Certificates" shall be required by deemed to include references to book-entry account statements relating to the Exchange Agentownership of shares of Company Common Stock)), the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that which such holder has the right to receive pursuant to in respect of the provisions shares of Article 2Company Common Stock formerly represented by such Certificate, and the Certificate so surrendered will shall forthwith be canceled. No interest will be paid or accrued on any Merger Consideration payable to holders of Certificates. In the event of a transfer of ownership of Shares that are shares of Company Common Stock which is not registered in the transfer records of SWVAthe Company, as the case may be, payment Merger Consideration may be issued to a person other than the person in whose name transferee if the Certificate so surrendered representing such shares of Company Common Stock is registered if presented to the Paying Agent, accompanied by all documents required to evidence and effect such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays by evidence that any applicable stock transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has Taxes have been paid or is not applicablepaid. Until surrendered as contemplated by this Section 3.13.2, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has or the right to receive in respect of such Certificate pursuant demand to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders the "fair value" of Certificates pursuant to the provisions of Article 2shares represented thereby as contemplated by Section 3.3.
Appears in 1 contract
Exchange Procedures. (ia) Not Reasonably promptly after the execution of this Agreement, Parent shall designate and appoint an exchange and escrow agent from or affiliated with a nationally recognized banking institution reasonably acceptable to the Parent and the Company, with such approval not to be unreasonably withheld or delayed, to act as exchange agent and escrow agent hereunder (in such capacities, the “Exchange Agent” and “Escrow Agent”) for the purpose of exchanging Certificates.
(b) Promptly after the Effective Time, but in any event not more than 45 days nor fewer than 30 days prior to five (5) Business Days after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record record, as of a Certificateimmediately prior to the Effective Time, whose of shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each such holder, a properly completed Form of Election“Company Stockholder”), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will each Certificate representing any shares of Company Common Stock held by such Company Stockholder shall pass, only upon delivery of the Certificates completed letter of transmittal and such Certificate to the Exchange Agent and will shall be in such form and have such other provisions as Parent and the Exchange Agent may specify consistent with this AgreementCompany shall mutually agree) and (ii) instructions for use in effecting the surrender of the Certificates each such Certificate in exchange for the total amount of Merger ConsiderationConsideration that such Company Stockholder is entitled to receive in exchange for such holder’s shares of Company Common Stock in the Merger pursuant to this Agreement. From and after the Effective Time, until surrendered as contemplated by this Section 3.2, each -12- Certificate representing shares of Company Common Stock held by a Company Stockholder shall be deemed to represent only the right to receive the total amount of Merger Consideration to which such Company Stockholder is entitled in exchange for such shares of Company Common Stock as contemplated by Section 2.
(iiic) With respect Upon surrender by a Company Stockholder to properly made elections the Exchange Agent of all Certificates representing such holder’s shares of Company Common Stock, together with a letter of transmittal duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will each Company Stockholder shall be entitled to receive in exchange therefor (and the Merger Consideration Exchange Agent shall mail to such Company Stockholder within ten (10) Business Days following such surrender): (i) a certificate (or certificates in the aggregate), or book-entry statement in the case of uncertificated shares, representing the number of whole shares of Parent Common Stock into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, and such Certificates so surrendered shall be forthwith cancelled, and (ii) a check in an amount of U.S. dollars (after giving effect to any required withholdings pursuant to Section 3.7) equal to any cash dividends and other distributions that such holder has the right to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 23.3.
Appears in 1 contract
Sources: Merger Agreement (Glowpoint, Inc.)
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close As promptly as practicable to after the date of mailing and mutually agreed hereof, Novus shall use its reasonable best efforts to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Company Common Stock were converted into and holder of Company Preferred Stock evidenced by certificates (the right “Certificates”) entitled to receive the Per Share Merger Consideration and those who failed pursuant to return a properly completed Form of Election, (i) Section 3.01: a letter of transmittal transmittal, which shall be in a form reasonably acceptable to Novus and the Company (which will the “Letter of Transmittal”) and shall specify (A) that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) Agent; and (iiB) instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal. Within two (2) Business Days (but in exchange no event prior to the Effective Time) after the surrender to the Exchange Agent of all Certificates held by such holder for the Merger Consideration.
(iii) With respect to properly made elections cancellation, together with a Letter of Transmittal, duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, instructions thereto and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will Certificates shall be entitled to receive in exchange therefor therefore, and Novus shall cause the Exchange Agent to deliver the Per Share Merger Consideration that such holder has the right to receive pursuant to in accordance with the provisions of Article 2Section 3.01, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.10, each Certificate will entitled to receive the Per Share Merger Consideration in accordance with Section 3.01 shall be deemed at any time all times after the Effective Date Time to represent only the right to receive upon such surrender the Per Share Merger Consideration that the such holder thereof has the right is entitled to receive in respect of such Certificate pursuant to accordance with the provisions of Article Section 3.01.
(ii) Within two (2. No interest will be paid or will accrue on any cash payable ) Business Days following the Effective Time (but in no event prior to holders the Effective Time), Novus shall cause the Exchange Agent to deliver to each holder of Company Common Stock, as of immediately prior to the Effective Time, represented by book-entry (including shares of Company Common Stock resulting from the conversion of Company Preferred Stock not evidenced by Certificates pursuant to described in Section 3.01a)) the Per Share Merger Consideration in accordance with the provisions of Article 2Section 3.01, and such Company Common Stock shall forthwith be cancelled.
Appears in 1 contract
Sources: Business Combination Agreement (Novus Capital Corp II)
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior Prior to the Effective DateClosing, First National, as the SPAC shall appoint an exchange agent ("the “Exchange Agent")”) consented to by the Company (such consent not to be unreasonably withheld, will mail a form conditioned or delayed) to act as the agent for the purpose of election paying the Merger Consideration (other than the "Form of Election"Earn Out Shares) to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date Company’s stockholders (the "Election Deadline"“Aggregate Merger Consideration”); provided, a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for however, that SPAC shall afford the shares Company the opportunity to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by review any proposed Contract with the Exchange Agent prior to 5:00 p.m. on execution, and shall accept the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentCompany’s reasonable comments thereto.
(iib) As soon At the First Effective Time, the Company will promptly issue and allot, credited as reasonably practicable after fully paid, or cause to be issued and allotted, credited as fully paid, to the Effective Date, Pre-Closing Holders (and the Company will direct the Exchange Agent will mail to each holder take all necessary action to record and effect the same) the number of record of a Certificate, whose shares of SWVA SPAC Class A Common Stock were converted into the right equal to receive Merger Consideration in accordance with the Allocation Schedule, in each case in book-entry form (which shall have a customary Securities Act restrictive legend), unless otherwise reasonably requested by the Company.
(c) If any portion of the Merger Consideration is to be issued to a Person other than the Person in whose name the relevant Company Common Stock was registered on the books and those who failed records of the Company immediately prior to return the First Effective Time, it shall be a properly completed Form of Election, condition to such delivery that (i) a letter the transfer of transmittal (which will specify that delivery will be effectedsuch Company Common Stock shall have been permitted in accordance with the terms of the Company’s Organizational Documents, and risk of loss and title as in effect immediately prior to the Certificates will passEffective Time, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions if applicable, the certificate representing such Company Common Stock shall be properly endorsed or shall otherwise be in proper form for use in effecting transfer, (iii) the surrender recipient of the Certificates in exchange for such portion of the Merger Consideration.
(iii) With respect , or the Person in whose name such portion of the Merger Consideration is issued, shall have already executed and delivered counterparts to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may are reasonably be required deemed necessary by the Exchange AgentSurviving Corporation or the Company, and (iv) the holder of Person requesting such Certificate will be entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant delivery shall pay to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays Company any transfer or other taxes Taxes required by reason as a result of such payment delivery to a person Person other than the registered holder of such Certificate Company Common Stock or establishes establish to the satisfaction of FNB the Surviving Corporation and the Company that such tax Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2payable.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to At the Effective DateTime, First National, as Shareholder shall surrender to Buyer his Certificates representing 100% of the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA outstanding Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Exchange Agent and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect Consideration into which the shares of Company Common Stock represented by such Certificates shall have been converted pursuant to properly made elections in accordance with Section 3.1(i), and upon 2.1 of this Agreement. Upon proper surrender in accordance with Section 3.1(ii) to Buyer of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, exchange and such other documents as may reasonably be required by the Exchange Agentcancellation, the holder of such Certificate will Certificates shall be entitled to receive paid in exchange therefor therefor, the Merger Consideration that such holder has Consideration. In respect of the right to receive Certificates surrendered pursuant to the provisions of Article 2this Section 2.3, and the Certificate so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicablecancelled. Until surrendered as contemplated by this Section 3.12.3, each Certificate will shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration. No interest shall be paid or accrued on any Merger Consideration.
(b) Buyer shall not be obligated to deliver cash to which a holder of Company Common Stock would otherwise be entitled as a result of the Merger until such holder surrenders the Certificate or Certificates representing 100% of the outstanding Company Common Stock for exchange as provided in this Section 2.3, or an appropriate affidavit of loss and indemnity agreement and/or a bond in an amount as may be required in each case by Buyer.
(c) If outstanding Certificates for shares of Company Common Stock are not surrendered, or the payment for them is not claimed prior to the date on which such cash would otherwise escheat to or become the property of any governmental unit or agency, the unclaimed items shall, to the extent permitted by abandoned property and any other applicable law, become the property of Buyer (and to the extent not in its possession shall be delivered to it), free and clear of all claims or interest of any Person previously entitled to such property. Neither Buyer nor any party to this Agreement shall be liable to any holder of shares of Company Common Stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Buyer shall be entitled to rely upon the stock transfer books of the Company to establish the identity of those Persons entitled to receive the Merger Consideration that specified in this Agreement, which books shall be conclusive with respect thereto. In the event of a dispute with respect to ownership of any shares of Company Common Stock represented by any Certificate, Buyer shall be entitled to deposit any Merger Consideration represented thereby in escrow with an independent third party and thereafter be relieved with respect to any claims thereto.
(d) Buyer shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement to any holder of shares of Company Common Stock such amounts as Buyer 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 any applicable provision of U.S. federal, state, local or non-U.S. tax law. Such amounts so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the holder thereof has the right to receive of Company Common Stock in respect of which such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2deduction and withholding was made by Buyer.
Appears in 1 contract
Exchange Procedures. (ia) Not more Prior to the Closing, and in any event no later than 45 days nor fewer than 30 days five (5) Business Days prior to the Closing Date, Acquiror shall appoint an exchange agent (the “Exchange Agent”) to act as the agent for the purpose of paying the Aggregate Merger Consideration to the Company’s equityholders. At or before the Effective Time, Acquiror shall deposit with the Exchange Agent the number of shares of Acquiror Common Stock equal to the portion of the Aggregate Merger Consideration to be paid in shares of Acquiror Common Stock.
(b) Reasonably promptly after the Effective Time, Acquiror shall send or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock as of immediately prior to the Effective DateTime, First Nationalwhose shares of Company Common Stock were converted pursuant to Section 3.1(a) into the right to receive a portion of the Aggregate Merger Consideration, as a letter of transmittal and instructions (which shall specify that the exchange agent ("Exchange Agent")delivery shall be effected, will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made risk of loss and title shall pass, only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form upon proper transfer of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same each share to the Exchange Agent, and which letter of transmittal will be in a form mutually agreed in good faith among the Exchange Agent, Acquiror and the Company prior to Closing, for use in such exchange (each, a “Letter of Transmittal”).
(iic) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each Each holder of record of a Certificate, whose shares of SWVA Company Common Stock were that have been converted into the right to receive a portion of the Aggregate Merger Consideration, pursuant to Section 3.1(a), shall be entitled to receive such portion of the Aggregate Merger Consideration and those who failed to return a properly completed Form of Election, (i) a letter of transmittal (which will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to receipt by the Exchange Agent and will be in such form and have of an “agent’s message” (or such other provisions evidence, if any, of transfer as the Exchange Agent may specify consistent with this Agreementreasonably request) or a duly completed and (ii) instructions for use in effecting the surrender validly executed Letter of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i)Transmittal, and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedas applicable, and such other documents as may reasonably be required requested by the Exchange Agent, . No interest shall be paid or accrued upon the holder transfer of such Certificate will be entitled to receive in exchange therefor any share.
(d) If payment of the Aggregate Merger Consideration that such holder has the right is to receive pursuant to the provisions of Article 2, and the Certificate so surrendered will forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued made to a person Person other than the person in whose name record holder of any Company Common Stock, it shall be a condition of payment that the Certificate so surrendered is registered if Person requesting such Certificate is properly endorsed or otherwise in proper form for payment shall have paid any transfer and the person requesting such issuance pays any transfer or other taxes similar Taxes required by reason of such the payment of the Aggregate Merger Consideration to a person Person other than the registered holder of such Certificate shares surrendered or establishes shall have established to the satisfaction of FNB Acquiror that such tax has Taxes either have been paid or is are not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time .
(e) Promptly following the date that is one (1) year after the Effective Date Time, Acquiror shall instruct the Exchange Agent to represent only deliver to Acquiror all documents in its possession relating to the right to receive upon such surrender transactions contemplated hereby, and the Exchange Agent’s duties shall terminate. Thereafter, any portion of the Aggregate Merger Consideration that remains unclaimed shall be returned to Acquiror, and any Person that was a holder of shares of Company Common Stock as of immediately prior to the holder thereof Effective Time that has not exchanged such shares of Company Common Stock for an applicable portion of the right Aggregate Merger Consideration in accordance with this Section 3.2 prior to the date that is one (1) year after the Effective Time, may transfer such shares of Company Common Stock to Acquiror and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and Acquiror shall promptly deliver, such applicable portion of the Aggregate Merger Consideration without any interest thereupon. None of Acquiror, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of such Certificate any of the Aggregate Merger Consideration delivered to a public official pursuant to the provisions of Article 2and in accordance with any applicable abandoned property, escheat or similar Laws. No interest will be paid or will accrue If any such shares shall not have not been transferred immediately prior to such date on which any cash amounts payable to holders of Certificates pursuant to this Article III would otherwise escheat to or become the provisions property of Article 2any Governmental Authority, any such amounts shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be As promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime and in any event not later than the second Business Day following the Effective Time, the Exchange Surviving Corporation shall cause the Paying Agent will to mail to each Person who was, as of immediately prior to the Effective Time, a holder of record of a Certificate, whose certificate that immediately prior to the Effective Time represented any shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each, a properly completed Form of Election, “Certificate”)
(i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will shall pass, only upon proper delivery of the Certificates to the Exchange Paying Agent and will which shall otherwise be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) customary form), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) . Each holder of record of a Certificate for cancellation shall, upon surrender to the Exchange AgentPaying Agent of such Certificate, together with such letter of transmittal, duly executedexecuted and in proper form, and such other documents as may reasonably be required by the Exchange Paying Agent, the holder of such Certificate will be entitled to receive in exchange therefor the Merger Consideration that amount of cash which the number of shares of Company Common Stock previously represented by such holder has Certificate shall have been converted into the right to receive pursuant to the provisions of Article 2Section 3.01(c), and the Certificate so surrendered will shall forthwith be canceled. As promptly as practicable after the Effective Time and in any event not later than the second Business Day following the Effective Time, the Surviving Corporation shall cause the Paying Agent to issue and deliver to each Person who was, as of immediately prior to the Effective Time, a holder of uncertificated shares of Company Common Stock represented in book-entry form (“Book-Entry Shares”), other than with respect to shares to be canceled in accordance with Section 3.01(b) and shares the holders of which have complied with each of clauses (i) and (ii) of Section 3.01(d), a check or wire transfer for the amount of cash which such Book-Entry Shares shall have been converted into the right to receive pursuant to Section 3.01(c), without such holder being required to deliver a Certificate or an executed letter of transmittal to the Paying Agent, and such Book-Entry Shares shall forthwith be canceled. In the event of a transfer of ownership of Shares that are Company Common Stock which is not registered in the transfer records of SWVA, as the case may beCompany, payment of the Merger Consideration may be issued made to a person Person other than the person Person in whose name the Certificate so surrendered is registered registered, but only if such Certificate is properly endorsed or otherwise is in proper form for transfer and the person Person requesting such issuance pays payment shall pay any transfer or other taxes similar Taxes required by reason of such the payment of the Merger Consideration to a person Person other than the registered holder of such Certificate or establishes establish to the reasonable satisfaction of FNB Parent that such tax Tax has been paid or is not applicable; provided, however, that payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the Person in whose name such Book-Entry Shares are registered. Until Each Book-Entry Share and, until surrendered as contemplated by this Section 3.13.03(b), each Certificate will Certificate, shall be deemed at any time after the Effective Date Time to represent only the right to receive upon such surrender the Merger Consideration that which the holder thereof has the right to receive in respect of such Certificate or Book-Entry Share pursuant to this Article III, except for Certificates and Book-Entry Shares in respect of Appraisal Shares, which shall be deemed to represent the provisions of Article 2right to receive the consideration due with respect to such Appraisal Shares in accordance with Section 3.01(d) to the extent provided by Section 351.455 or the MGBCL. No interest will shall be paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares pursuant to the provisions of this Article 2III.
Appears in 1 contract
Sources: Merger Agreement
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to Promptly after the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In additionTime, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificatecertificate or certificates which, whose immediately prior to the Effective Time, represented outstanding shares of SWVA Company Common Stock were converted into (the right to receive Merger Consideration and those who failed to return a properly completed Form of Election“Certificates”), other than shares canceled in accordance with Section 3.1(c): (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will theretofore representing shares of Company Common Stock shall pass, only upon proper delivery of the such Certificates to the Exchange Agent Agent, and will shall be in such form and have such other provisions as the Exchange Agent may specify consistent with this AgreementSterling shall specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon . Upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange AgentAgent (or to such other agent or agents as may be appointed by Sterling), together with such letter of transmittal, duly executed, and such any other documents as may reasonably be required by the Exchange Agentdocuments, the holder of such Certificate will Certificate(s) shall be entitled to receive in exchange therefor a check in the amount equal to the portion of the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2Section 3.2, and the Certificate Certificate(s) so surrendered will shall forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2cancelled. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2III or this Section 4.2. In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company, a check in the proper amount of the portion of the Merger Consideration pursuant to Section 3.2, may be issued to a transferee if the Certificate(s) representing such Company Common Stock is presented to the Exchange Agent accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 4.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender Merger Consideration as provided in Article III. The Certificate(s) for Company Common Stock so surrendered shall be duly endorsed as the Exchange Agent may require. Sterling shall not be obligated to deliver the consideration to which any former holder of Company Common Stock is entitled as a result of the Merger until such holder surrenders his Certificate(s) formerly representing shares of Company Common Stock for exchange as provided in this Article IV.
Appears in 1 contract
Exchange Procedures. (ia) Not more than 45 days nor fewer than 30 days prior to the Effective DateIn accordance with Section 2.2(a) herein, holders of record of certificates formerly representing shares of First National, as the exchange agent ("Exchange Agent"), will mail a form of election Federal Common Stock (the "Form of ElectionCertificates") shall be instructed to each shareholder of record of SWVA as of a record date as close as practicable tender such Certificates to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts pursuant to make the Form a letter of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if transmittal that the Exchange Agent shall have received on deliver or cause to be delivered to such holders, which letter of transmittal shall be included with the fifth business day immediately preceding Election Forms distributed pursuant to Section 2.2(a).
(b) The Holding Company or, at the Effective Date (election of the "Election Deadline")Holding Company, a Form of Election properly completed the Exchange Agent, shall accept Certificates upon compliance with such reasonable terms and accompanied by a SWVA Certificate ("Certificate(s)") for conditions as the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (Holding Company or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior may impose to 5:00 p.m. on effect an orderly exchange thereof in accordance with customary exchange practices. All Certificates shall be appropriately endorsed or accompanied by such instruments of transfer as the Election Deadline. If an election is so revoked, the Certificate(s) (Holding Company or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange AgentAgent may require.
(iic) As soon as reasonably practicable Each outstanding Certificate shall until duly surrendered to the Holding Company or the Exchange Agent be deemed to evidence ownership of the Merger Consideration into which the First Federal Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement.
(d) Subject to Section 2.3, after the Effective Date, holders of Certificates shall cease to have rights with respect to First Federal Common Stock previously represented by such Certificates, and their sole rights shall be to exchange such Certificates for the Merger Consideration provided for in this Agreement. After the Effective Date, there shall be no further transfer on the records of First Federal of Certificates, and if such Certificates are presented to First Federal for transfer, they shall be cancelled against delivery of the Merger Consideration provided therefor in this Agreement. Neither the Exchange Agent will mail nor the Holding Company shall be obligated to each deliver the Merger Consideration to which any former holder of record of a Certificate, whose shares of SWVA First Federal Common Stock were converted into is entitled as a result of the Merger until such holder surrenders the Certificates as provided herein. No dividends declared will be remitted to any person entitled to receive Holding Company Common Stock under this Agreement until such person surrenders the Certificates representing the right to receive Merger Consideration such Holding Company Common Stock, at which time such dividends shall be remitted to such person, without interest and those who failed to return a properly completed Form of Electionless any taxes that may have been imposed thereon. [CERTIFICATES SURRENDERED FOR EXCHANGE BY ANY PERSON CONSTITUTING AN "AFFILIATE" OF FIRST FEDERAL FOR PURPOSES OF RULE 145 OF THE SECURITIES ACT OF 1933, AS AMENDED (i) a letter of transmittal (which will specify that delivery will be effectedTOGETHER WITH THE RULES AND REGULATIONS THEREUNDER, and risk of loss and title to the Certificates will passTHE "SECURITIES ACT"), only upon delivery of the Certificates to SHALL NOT BE EXCHANGED FOR HOLDING COMPANY COMMON STOCK UNTIL THE HOLDING COMPANY HAS RECEIVED A WRITTEN AGREEMENT FROM SUCH PERSON IN THE FORM ATTACHED AS EXHIBIT C.] Neither the Exchange Agent nor any party to this Agreement nor any affiliate thereof shall be liable to any holder of stock represented by any Certificate for any consideration paid to a public official pursuant to applicable abandoned property, escheat or similar laws. The Holding Company and will be in such form and have such other provisions as the Exchange Agent may specify consistent with this Agreement) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to rely upon the stock transfer books of First Federal to establish the identity of those persons entitled to receive in exchange therefor the Merger Consideration that such holder has the right to receive pursuant to the provisions of Article 2specified in this Agreement, and the Certificate so surrendered will forthwith which books shall be canceledconclusive with respect thereto. In the event of a transfer of dispute with respect to ownership of Shares that are not registered in stock represented by any Certificate, the transfer records of SWVA, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer Holding Company and the person requesting such issuance pays Exchange Agent shall be entitled to deposit any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right represented thereby in escrow with an independent third party and thereafter be relieved with respect to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2claims thereto.
Appears in 1 contract
Sources: Merger Agreement (Bryan College Station Financial Holding Co)
Exchange Procedures. (ia) Not Promptly after the execution of this Agreement, Parent shall designate and appoint Computershare Trust Company, N.A. or an Affiliate thereof to act as exchange agent hereunder (the “Exchange Agent”) for the purpose of exchanging Certificates.
(b) Promptly after the Effective Time, but in any event not more than 45 days nor fewer than 30 days prior to five (5) Business Days after the Effective DateTime, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Parent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record as of a Certificate, whose immediately prior to the Effective Time of shares of SWVA Company Common Stock were converted into the right to receive Merger Consideration and those who failed to return (each such holder, a properly completed Form of Election“Company Common Stock Holder”), (i) a letter of transmittal (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will each Certificate representing any shares of Company Common Stock held by such Company Common Stock Holder shall pass, only upon delivery of the Certificates completed letter of transmittal and such Certificate to the Exchange Agent and will shall be in such form and have such other provisions as Parent and the Exchange Agent may specify consistent with this AgreementCompany shall mutually agree) and (ii) instructions for use in effecting the surrender of the Certificates each such Certificate in exchange for the total amount of Merger ConsiderationConsideration that such Company Common Stock Holder is entitled to receive in exchange for such holder’s shares of Company Common Stock in the Merger pursuant to this Agreement. From and after the Effective Time, until surrendered as contemplated by this Section 3.2, each Certificate representing shares of Company Common Stock held by a Company Common Stock Holder shall be deemed to represent only the right to receive the total amount of Merger Consideration to which such Company Common Stock Holder is entitled in exchange for such shares of Company Common Stock as contemplated by Section 2.
(iiic) With respect Upon surrender by a Company Common Stock Holder to properly made elections the Exchange Agent of all Certificates representing such holder’s shares of Company Common Stock, together with a letter of transmittal duly completed and validly executed in accordance with Section 3.1(i), and upon surrender in accordance with Section 3.1(ii) of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executedinstructions thereto, and such other documents as may reasonably be required by the Exchange Agentpursuant to such instructions, the holder of such Certificate will each Company Common Stock Holder shall be entitled to receive in exchange therefor (and the Merger Consideration that Exchange Agent shall mail to such holder has Company Common Stock Holder within ten (10) Business Days following such surrender): (i) a certificate (or certificates in the right to receive pursuant to aggregate) representing the provisions number of Article whole shares of Parent Stock into which such holder’s shares of Company Common Stock represented by such holder’s properly surrendered Certificates were converted in accordance with Section 2, and the Certificate such Certificates so surrendered will shall be forthwith be canceled. In the event of a transfer of ownership of Shares that are not registered in the transfer records of SWVAcancelled, as the case may be, payment may be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or otherwise in proper form for transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such payment to a person other than the registered holder of such Certificate or establishes to the satisfaction of FNB that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.and
Appears in 1 contract
Sources: Merger Agreement
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to As promptly as practicable following the Effective Date, First National, as the exchange agent Time ("Exchange Agent"but in no event later than three (3) business days thereafter), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent Surviving Corporation shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, cause the Exchange Agent will use its best efforts to mail (and to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied for collection by a SWVA Certificate ("Certificate(s)"hand) for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective Date, the Exchange Agent will mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Certificate (ix) a letter of transmittal in customary form (a “Letter of Transmittal”), which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will pass, shall pass only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Exchange Agent Agent, and will which Letter of Transmittal shall be in such form and have such other provisions as the Exchange Agent Surviving Corporation may specify consistent with this Agreement) and reasonably specify, (iiy) instructions for use in effecting the surrender of the Certificates in exchange for the Merger ConsiderationConsideration into which the number of shares of Company Common Stock previously represented by such Certificate shall have been converted pursuant to this Agreement, and (z) the method of payment of such holder’s Fractional Shares Cash Amount, if applicable.
(iiiii) With respect to properly made elections in accordance with Section 3.1(i), and upon Upon surrender in accordance with Section 3.1(ii) of a Certificate (or affidavit of loss in lieu thereof) for cancellation to the Exchange Agent, together with such letter a Letter of transmittal, Transmittal duly executedcompleted and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate will shall be entitled to receive in exchange therefor the Merger Consideration that (which shall be in uncertificated book entry form unless a physical certificate is requested) for each share of Company Common Stock formerly represented by such holder has the right to receive Certificate pursuant to the provisions of this Article II, to be mailed or made available for collection by hand, within two (2) business days following the later to occur of (A) the Effective Time or (B) the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) and if applicable, the Fractional Shares Cash Amount, and the Certificate (or affidavit of loss in lieu thereof) so surrendered will shall be forthwith canceled. The Exchange Agent shall accept such Certificates (or affidavits of loss in lieu thereof) 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. Until surrendered as contemplated by this Section 2.02, each Certificate shall be deemed, at any time after the Effective Time, to represent only the right to receive, upon such surrender, the Merger Consideration and if applicable, the Fractional Shares Cash Amount as contemplated by this Article II. No interest shall be paid or accrued for the benefit of holders of the Certificates on the Merger Consideration payable upon the surrender of the Certificates.
(iii) As promptly as practicable following the Effective Time (but in no event later than two (2) business days thereafter), the Surviving Corporation shall cause the Exchange Agent to issue to each holder of Book-Entry Shares that number of uncertificated whole shares of Parent Common Stock that such holder is entitled to receive pursuant to Section 2.01(b) in respect of such Book-Entry Shares and pay to such holder the Fractional Shares Cash Amount, as applicable, without such holder being required to deliver a Certificate or an executed Letter of Transmittal to the Exchange Agent (provided that the holder of the Book-Entry Shares otherwise complies with the Exchange Agent’s customary procedures with respect to securities in book-entry form), and such Book-Entry Shares shall then be canceled. No interest shall be paid or accrued for the benefit of holders of Book-Entry Shares on the Merger Consideration payable in respect of the Book-Entry Shares.
(iv) In the event of a transfer of ownership of Shares shares of Company Common Stock that are is not registered in the transfer records of SWVAthe Company, as it shall be a condition of payment that any Certificate surrendered in accordance with the case may be, payment may procedures set forth in this Section 2.02(c) shall be issued to a person other than the person in whose name the Certificate so surrendered is registered if such Certificate is properly endorsed or shall be otherwise in proper form for transfer transfer, or any Book-Entry Share shall be properly transferred, and that the person requesting such issuance pays payment shall have paid any transfer or taxes and other taxes required by reason of such the payment of the Merger Consideration to a person other than the registered holder of such the Certificate or establishes Book-Entry Share surrendered or shall have established to the satisfaction of FNB Parent that such tax either has been paid or is not applicable. Until surrendered as contemplated by this Section 3.1, each Certificate will be deemed at any time after the Effective Date to represent only the right to receive upon such surrender the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to the provisions of Article 2.
Appears in 1 contract
Exchange Procedures. (i) Not more than 45 days nor fewer than 30 days prior to the Effective Date, First National, as the exchange agent ("Exchange Agent"), will mail a form of election (the "Form of Election") to each shareholder of record of SWVA as of a record date as close as practicable to the date of mailing and mutually agreed to by SWVA and FNB. The Exchange Agent shall enter into a written agreement with FNB and SWVA detailing its duties and responsibilities and shall furnish evidence of liability insurance for such activities in a form substantially similar to Exhibit B. In addition, the Exchange Agent will use its best efforts to make the Form of Election available to the persons who become shareholders of SWVA during the period between such record date and the Effective Date. Any election to receive Merger Consideration will have been properly made only if the Exchange Agent shall have received on the fifth business day immediately preceding the Effective Date (the "Election Deadline"), a Form of Election properly completed and accompanied by a SWVA Certificate ("Certificate(s)") for the shares to which such Form of Election relates, acceptable for transfer on the books of SWVA (or an appropriate guarantee of delivery), as set forth in such Form of Election. An election may be revoked only by written notice received by the Exchange Agent prior to 5:00 p.m. on the Election Deadline. If an election is so revoked, the Certificate(s) (or guarantee of delivery, as appropriate) to which such election relates will be promptly returned to the person submitting the same to the Exchange Agent.
(ii) As soon as reasonably practicable after the Effective DateTime, Parent shall instruct the Exchange Paying Agent will to mail to each holder of record of a Certificate, whose shares of SWVA Common Stock were converted into Company Stockholder at the right to receive Merger Consideration and those who failed to return a properly completed Form of Election, Effective Time (i) a letter of transmittal in customary form (which will shall specify that delivery will shall be effected, and risk of loss and title to the Certificates will certificate(s) representing all of the Company Stock shall pass, only upon delivery of the Certificates certificate(s) to the Exchange Paying Agent and will shall be in such form and have such other reasonable provisions as the Exchange Agent may specify consistent not inconsistent with this AgreementAgreement as Parent may specify) and (ii) instructions for use in effecting the surrender of certificate(s) representing all of the Certificates shares the Company Stock held by him, her or it in exchange for his, her or its Initial Merger Payment (as defined below). The letter of transmittal shall include the agreement by each Company Stockholder to irrevocably constitute and appoint, effective as of the Effective Time, the Representative, as his, her or its true and lawful agent, proxy and attorney-in-fact to exercise all or any of the powers, authority and discretion conferred on him, her or it under this Agreement and a waiver of any appraisal rights such Company Stockholder may have under Part 13 of the MBCA. The receipt of the appropriate Initial Merger Consideration.
(iii) With respect to properly made elections in accordance with Section 3.1(iPayment by any Company Stockholder is conditioned upon the execution and delivery of such transmittal letter containing such appointment and waiver. After the Effective Time, within two business days after receipt by the Paying Agent of certificate(s), and upon surrender properly endorsed or otherwise in accordance with Section 3.1(ii) proper form for transfer, representing all the shares of a Certificate Company Stock held by any Company Stockholder for cancellation to the Exchange Agentcancellation, together with such letter of transmittal, duly executed, and such other documents as may reasonably be required by the Exchange AgentPaying Agent shall, the holder of such Certificate will be entitled to receive in exchange therefor therefor, pay to such Company Stockholder an amount equal to such Company Stockholder’s Aggregate Allocable Portion of the Merger Consideration that less such holder has Company Stockholder’s Aggregate Allocable Portion of the right Escrow Amount (such amount, with respect to receive pursuant to each such Company Stockholder, being the provisions of Article 2“Initial Merger Payment”), if any, but without interest, and the Certificate certificate(s) so surrendered will shall forthwith be canceledcancelled. In the event If payment of a transfer any portion of ownership of Shares that are not registered in the transfer records of SWVA, as the case may be, payment may any such amount is to be issued made to a person Person other than the person Person in whose name the Certificate so surrendered is registered if certificate(s) are registered, it shall be a condition of payment that the Person requesting such Certificate is properly endorsed or otherwise in proper form for payment (i) shall have paid any transfer and the person requesting such issuance pays any transfer or other taxes required by reason of such the payment of those amounts to a person Person other than the registered holder of such Certificate or establishes the certificate(s) surrendered, and shall have established to the satisfaction of FNB the Surviving Corporation that such tax has been paid paid, or (ii) shall have established to the satisfaction of the Surviving Corporation that such tax is not applicable. Until surrendered as contemplated by this Section 3.12.2, each Certificate will certificate representing shares of Company Stock shall be deemed at any time after the Effective Date Time to represent for all purposes only the right to receive upon such surrender the applicable Allocable Portion of the Merger Consideration that the holder thereof has the right to receive in respect of such Certificate pursuant to each share of Company Stock represented thereby in accordance with the provisions of Article 2. No interest will be paid or will accrue on any cash payable to holders of Certificates pursuant to terms hereof and in the provisions of Article 2manner provided herein.
Appears in 1 contract
Sources: Merger Agreement (Mykrolis Corp)