Exchange Provisions. (a) At the Effective Time, all shares of Common Stock (and associated Rights), by virtue of the Merger and without any action on the part of the Holders, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each Holder of a cer- tificate representing any such share of Common Stock shall thereafter cease to have any rights with respect to such share of Common Stock (and associated Right) except the right to receive the Merger Consideration for such share of Common Stock (and associated Right) specified in Section 2.5. (b) Prior to the Effective Time, Shire shall designate a bank or trust company reasonably satisfactory to ▇▇▇▇▇▇▇ to act as Exchange Agent hereunder (the "Exchange Agent"). At the Effective Time, Shire shall (i) issue to and deposit with the Depositary, for the benefit of the holders of shares of Common Stock converted into Shire ADSs in accordance with Sections 2.5(a) and (f), Ordinary Shares in an amount sufficient to permit the Depositary to issue Shire ADSs representing the number of Shire ADSs issuable pursuant to Sections 2.5(a) and (f) and (ii) deposit, in trust, with the Exchange Agent for the benefit of the Holders, Ordinary Shares constituting the Merger Consideration. As soon as practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each Holder (i) a form of letter of transmittal specifying that delivery shall be effected, and risk of loss and title to certificates of Common Stock shall pass, only upon proper delivery of such certificates to the Exchange Agent and (ii) instructions for use in surrendering such certificates in exchange for the Merger Consideration set forth in Section 2.5. Such letter of transmittal shall also indicate that Holders have an irrevocable right to elect to receive all or any portion of their Ordinary Shares as Ordinary Shares in lieu of Shire ADSs as set forth in Section 2.5(f). Upon surrender of any such certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such certificate shall be entitled to receive in exchange therefor the Merger Consideration. Shire shall cause the Depositary to issue Shire ADRs through and upon the instructions of the Exchange Agent, for the benefit of the holders of shares of Common Stock who have not elected to receive Ordinary Shares pursuant to Section 2.5(f). Neither the Exchange Agent nor any party hereto shall be liable to any Holder for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Shire and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Holder such amounts as the Surviving Corporation or the Exchange Agent is required to deduct and withhold under the Code or any provision of national, state or local law, with respect to the making of such payment. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of whom such deduction and withholding was made. Any Merger Consideration payable to Holders pursuant to Section 2.5 which remains undistributed to the Holders for a period of six months after the Closing Date shall be delivered to the Surviving Corporation upon its request, and any Holders who have not surrendered to the Exchange Agent certificates for Common Stock or complied with the instructions in the letter of transmittal, as the case may be, shall thereafter look only to the Surviving Corporation for payment of such Merger Consideration. The Surviving Corporation shall instruct the Exchange Agent to invest all cash held by it in Cash Equivalents. Interest earned on such Cash Equivalents shall be paid to the Surviving Corporation. (c) Until so surrendered, each certificate representing Common Stock shall represent, after the Effective Time, solely the right to receive the Merger Consideration specified in Section 2.5. The Merger Consideration issued upon the surrender of Common Stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Common Stock (and associated Rights).
Appears in 1 contract
Exchange Provisions. (a) At the Effective Time, all shares of Common Stock (and associated Rights), by virtue of the Merger and without any action on the part of the Holders, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each Holder of a cer- tificate representing any such share of Common Stock shall thereafter cease to have any rights with respect to such share of Common Stock (and associated Right) except the right to receive the Merger Consideration for such share of Common Stock (and associated Right) specified Any provision in Section 2.5.
(b) Prior this Contract to the Effective Timecontrary notwithstanding, Shire the following provisions shall designate a bank apply:
A. At Seller’s option, exercisable by written notice to Buyer at or trust company reasonably satisfactory to ▇▇▇▇▇▇▇ to act as Exchange Agent hereunder (the "Exchange Agent"). At the Effective Time, Shire shall (i) issue to and deposit with the Depositary, for the benefit of the holders of shares of Common Stock converted into Shire ADSs in accordance with Sections 2.5(a) and (f), Ordinary Shares in an amount sufficient to permit the Depositary to issue Shire ADSs representing the number of Shire ADSs issuable pursuant to Sections 2.5(a) and (f) and (ii) depositbefore Closing, in trustlieu of Seller selling the Property to Buyer for cash, with Seller may instead elect to transfer the Exchange Agent for the benefit of the Holders, Ordinary Shares constituting the Merger Consideration. As soon as practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent Property to mail to each Holder (i) a form of letter of transmittal specifying that delivery shall be effected, and risk of loss and title to certificates of Common Stock shall pass, only upon proper delivery of such certificates to the Exchange Agent and (ii) instructions for use in surrendering such certificates Buyer in exchange for other real property of a like-kind (“Exchange Land”) to be designated by Seller at or after Closing such that the Merger Consideration set forth exchange shall qualify for nonrecognition of gain or loss under Section 1031 of the Internal Revenue Code of 1986, as amended. If Seller elects to effect a like-kind exchange, Buyer shall cooperate in effecting the exchange, the exchange shall be completed through the use of a “qualified intermediary” as described in Section 2.514.B. below, and Seller shall indemnify and hold Buyer harmless from and against any loss, cost, damage or expense (including reasonable attorney’s fees and expenses) suffered by Buyer as a result of performing its obligations under this Section 14., assisting in the exchange, permitting the assignment of this Contract to an intermediary and making payment to that intermediary.
B. If Seller elects to effect a like-kind exchange of the Property, Seller shall assign all of its right, title and interest in and to this Contract to Independent Trustees, Inc. as “qualified intermediary” under Treasury Regulation Section 1.1031(k)-1(g) (“Intermediary”). Such letter Seller shall provide written notice of transmittal shall also indicate that Holders have an irrevocable right the assignment (including a copy of the executed Agreement of Assignment) to Buyer. Seller does not presently intend to elect to receive transfer the Real Property to Buyer in exchange for Exchange Land but if Seller does elect to do so Seller shall provide Buyer as soon as reasonably practicable with information regarding such transaction and in any event Seller shall provide all or any portion of their Ordinary Shares as Ordinary Shares in lieu of Shire ADSs as set forth in Section 2.5(f). Upon surrender of any requisite information concerning such certificate for cancellation an exchange to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such certificate shall be entitled to receive in exchange therefor the Merger Consideration. Shire shall cause the Depositary to issue Shire ADRs through and upon the instructions of the Exchange Agent, for the benefit of the holders of shares of Common Stock who have not elected to receive Ordinary Shares pursuant to Section 2.5(f). Neither the Exchange Agent nor any party hereto shall be liable to any Holder for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Shire and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Holder such amounts as the Surviving Corporation or the Exchange Agent is required to deduct and withhold under the Code or any provision of national, state or local law, with respect extent relevant to the making of such payment. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of whom such deduction and withholding was made. Any Merger Consideration payable to Holders pursuant to Section 2.5 which remains undistributed to the Holders for a period of six months after the Closing Date shall be delivered to the Surviving Corporation upon its request, and any Holders who have not surrendered to the Exchange Agent certificates for Common Stock or complied with the instructions in the letter of transmittal, as the case may be, shall thereafter look only to the Surviving Corporation for payment of such Merger Consideration. The Surviving Corporation shall instruct the Exchange Agent to invest all cash held by it in Cash Equivalents. Interest earned on such Cash Equivalents shall be paid to the Surviving Corporation.
(c) Until so surrendered, each certificate representing Common Stock shall represent, after the Effective Time, solely the right to receive the Merger Consideration specified in Section 2.5. The Merger Consideration issued upon the surrender of Common Stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Common Stock (and associated Rights).no later than April 1,
Appears in 1 contract
Exchange Provisions. (a) At the Effective Time, all shares of Common Stock (and associated Rights), by virtue of the Merger and without any action on the part of the Holders, shall no longer be outstanding and shall be canceled and retired and shall cease to exist, and each Holder of a cer- tificate representing any such share of Common Stock shall thereafter cease to have any rights with respect to such share of Common Stock (and associated Right) except the right to receive the Merger Consideration for such share of Common Stock (and associated Right) specified in Section 2.5.
(b) Prior to the Effective Time, Shire shall designate a bank or trust company reasonably satisfactory to ▇▇▇▇▇▇▇ to act as Exchange Agent hereunder (the "Exchange Agent"). At the Effective Time, Shire shall (i) issue to and deposit with the Depositary19.01 The Seller intends, for the benefit of the holders Seller, that the conveyance of shares the Real Property may be a part of Common Stock converted into Shire ADSs in accordance with Sections 2.5(a) and (f), Ordinary Shares in an amount sufficient to permit the Depositary to issue Shire ADSs representing the number of Shire ADSs issuable a tax deferred exchange pursuant to Sections 2.5(a) and (f) and (ii) deposit, in trust, with the Exchange Agent for the benefit §1031 of the HoldersInternal Revenue Code of 1986, Ordinary Shares constituting as amended, and the Merger ConsiderationRegulations promulgated thereunder, at no cost to the Purchaser. As soon as practicable after the Effective TimeIn connection with such tax deferred exchange, the Surviving Corporation Seller shall cause have the Exchange Agent to mail to each Holder (i) a form of letter of transmittal specifying that delivery shall be effected, and risk of loss and title to certificates of Common Stock shall pass, only upon proper delivery of such certificates to the Exchange Agent and (ii) instructions for use in surrendering such certificates in exchange for the Merger Consideration set forth in Section 2.5. Such letter of transmittal shall also indicate that Holders have an irrevocable right to elect to receive all or any portion of their Ordinary Shares as Ordinary Shares in lieu of Shire ADSs as set forth in Section 2.5(f). Upon surrender of any such certificate for cancellation to assign the Exchange Agentright, together with such letter of transmittal, duly executed, the holder of such certificate shall be entitled to receive in exchange therefor the Merger Consideration. Shire shall cause the Depositary to issue Shire ADRs through title and upon the instructions interest of the Exchange Agent, for the benefit of the holders of shares of Common Stock who have not elected to receive Ordinary Shares pursuant to Section 2.5(f). Neither the Exchange Agent nor any party hereto shall be liable to any Holder for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Shire Seller in and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Holder such amounts a “qualified intermediary” (as defined in Reg. §1.1031(k)-1(g)(4)(iii)). If the Surviving Corporation or Seller shall so assign this Agreement, the Exchange Agent is required to deduct and withhold under the Code Purchase Price (or any provision of national, state or local law, with respect to portion as prescribed by the making of such payment. To the extent such amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Holder in respect of whom such deduction and withholding was made. Any Merger Consideration payable to Holders pursuant to Section 2.5 which remains undistributed to the Holders for a period of six months after the Closing Date shall be delivered to the Surviving Corporation upon its request, and any Holders who have not surrendered to the Exchange Agent certificates for Common Stock or complied with the instructions in the letter of transmittal, as the case may be, shall thereafter look only to the Surviving Corporation for payment of such Merger Consideration. The Surviving Corporation shall instruct the Exchange Agent to invest all cash held by it in Cash Equivalents. Interest earned on such Cash Equivalents Seller) shall be paid to the Surviving Corporationsuch qualified intermediary.
19.02 The Purchaser shall cooperate with the Seller in connection with effecting such tax-deferred exchange and shall execute such documents (cincluding an assignment of this Agreement) Until so surrenderedas the Seller, each certificate representing Common Stock the Seller’s counsel, the qualified intermediary, and such qualified intermediary’s counsel (or any of them) shall representdeem necessary or desirable to consummate such exchange transaction; provided that (i) the Purchaser shall be reimbursed by the Seller for any costs and expenses which the Purchaser would not otherwise have incurred but for its participation in such exchange program by reason of this Section; (ii) the Purchaser shall not be required to incur any liability, after risk, cost or expense in connection with the Effective Timeexchange including, solely but not limited to, attorneys’ fees and recordation costs, or taking title to any property; (iii) the right exchange does not delay Closing; and (iv) any assignment of this Agreement to receive the Merger Consideration specified in Section 2.5qualified intermediary is done pursuant to a written agreement, which expressly permits the Purchaser to pursue the original Seller hereunder for defaults and breaches hereunder. The Merger Consideration issued upon Seller shall indemnify and hold the surrender Purchaser harmless from and against all costs, expenses, and liabilities that the Purchaser may incur by reason of Common Stock its participation in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Common Stock (and associated Rights)exchange program.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Comstock Homebuilding Companies, Inc.)
Exchange Provisions. Seller acknowledges that Buyer may elect to engage in a tax-deferred exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code. To effect this Exchange, Buyer may assign its rights in, and delegate its duties under, this Agreement to an exchange accommodator which Buyer shall determine. As an accommodation to Buyer, Seller agrees to cooperate with Buyer in connection with the Exchange, including the execution of documents therefor, provided the following terms and conditions are satisfied:
(a) At Seller shall have no obligation to take title to any property in connection with the Effective TimeExchange, all shares of Common Stock (and associated Rights), by virtue of the Merger and without nor shall Seller have any action on the part of the Holders, shall no longer be outstanding and shall be canceled and retired and shall cease liability to exist, and each Holder of a cer- tificate representing Buyer in connection with any such share of Common Stock shall thereafter cease to have any rights with respect to such share of Common Stock property (and associated Right) except the right to receive the Merger Consideration for such share of Common Stock (and associated Right) specified in Section 2.5."Exchange Property");
(b) Prior to the Effective TimeBuyer shall be solely responsible, Shire and Seller shall designate a bank or trust company reasonably satisfactory to ▇▇▇▇▇▇▇ to act as Exchange Agent hereunder have no responsibility whatsoever, for negotiating any and all agreements, escrow instructions and other documents (the collectively "Exchange AgentDocuments"). At the Effective Time, Shire shall (i) issue to and deposit with the Depositary, for the benefit of the holders of shares of Common Stock converted into Shire ADSs in accordance with Sections 2.5(a) and (f), Ordinary Shares in an amount sufficient to permit the Depositary to issue Shire ADSs representing the number of Shire ADSs issuable pursuant to Sections 2.5(a) and (f) and (ii) deposit, in trust, with the Exchange Agent for the benefit of the Holders, Ordinary Shares constituting the Merger Consideration. As soon as practicable after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail to each Holder (i) a form of letter of transmittal specifying that delivery shall be effected, and risk of loss and title to certificates of Common Stock shall pass, only upon proper delivery of such certificates to the Exchange Agent and (ii) instructions for use in surrendering such certificates in exchange for the Merger Consideration set forth in Section 2.5. Such letter of transmittal shall also indicate that Holders have an irrevocable right to elect to receive all or any portion of their Ordinary Shares as Ordinary Shares in lieu of Shire ADSs as set forth in Section 2.5(f). Upon surrender of any such certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such certificate shall be entitled to receive in exchange therefor the Merger Consideration. Shire shall cause the Depositary to issue Shire ADRs through and upon the instructions of the Exchange Agent, for the benefit of the holders of shares of Common Stock who have not elected to receive Ordinary Shares pursuant to Section 2.5(f). Neither the Exchange Agent nor any party hereto shall be liable to any Holder for any amount paid to a public official pursuant to any applicable abandoned property, escheat or similar law. Shire and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Holder such amounts as the Surviving Corporation or the Exchange Agent is required to deduct and withhold under the Code or any provision of national, state or local law, with respect to the making of such payment. To the extent such amounts are so withheldExchange Property, such withheld amounts shall as well as for any and all investigations, approvals and/or other actions required to be treated for all purposes of this Agreement as having been paid taken or permitted to the Holder in respect of whom such deduction and withholding was made. Any Merger Consideration payable to Holders pursuant to Section 2.5 which remains undistributed to the Holders for a period of six months after the Closing Date shall be delivered to the Surviving Corporation upon its request, and any Holders who have not surrendered to taken by Buyer under the Exchange Agent certificates for Common Stock or complied with the instructions in the letter of transmittal, as the case may be, shall thereafter look only to the Surviving Corporation for payment of such Merger Consideration. The Surviving Corporation shall instruct the Exchange Agent to invest all cash held by it in Cash Equivalents. Interest earned on such Cash Equivalents shall be paid to the Surviving Corporation.Documents;
(c) Until so surrenderedSeller shall in no way to be obligated to pay any escrow costs, each certificate representing Common Stock brokerage commissions, title charges, survey costs, recording costs or other charges incurred with respect to any Exchange Property and/or the Exchange, and Buyer shall representreimburse Seller for any professional fees including, after without limitation, actual reasonable attorneys' fees which Seller may incur with respect thereto;
(d) In no way shall the Effective TimeClosing of this transaction be contingent upon or otherwise subject to the consummation of the Exchange, solely and the right to receive the Merger Consideration specified in Section 2.5. The Merger Consideration issued upon the surrender of Common Stock escrow shall timely close in accordance with the terms hereof of this Agreement, notwithstanding any failure, for any reason, of the parties to the Exchange to effect same;
(e) Buyer shall not be relieved of any obligations which would otherwise survive the Closing by reason of effecting the Exchange contemplated herein, and all such obligations of Buyer shall survive the Closing in the same fashion as if the Exchange had not taken place;
(f) Seller shall not be required to make any representations or warranties, or to assume any obligations, or to spend any sum or to incur any personal liability whatsoever in connection with the Exchange;
(g) No representations, warranties, covenants and/or indemnification obligations set forth in this Agreement shall be affected or limited by Buyer's use of an exchange accommodator and shall survive the Exchange and shall continue to inure, as set forth in this Agreement, from Buyer for the benefit of Seller. No provision of any separate instruction or related instruction from Buyer, the exchange accommodator and/or any other party shall be deemed to modify the terms of this Agreement or any rights of Seller hereunder; and
(h) Buyer agrees to indemnify, protect, defend (with counsel reasonably chosen by Seller) and hold harmless Seller from and against any and all claims, demands, causes of action, liabilities, costs and expenses (including, without limitation, actual reasonable attorneys fees) asserted against and/or incurred by Seller in connection with the Exchange or attempted Exchange. Seller makes absolutely no representations or warranties of any kind or nature, express or implied, that tax-deferred exchange treatment is available to Buyer with respect to the Exchange, or that such a transaction will qualify in any respect for such treatment, and Seller shall incur no liability if the Exchange fails to qualify for tax-deferred treatment for any reason. If Seller defaults under the terms of this Agreement, then Seller shall be liable to Buyer for only those damages which would have been issued occurred if Buyer had not included the Property in full satisfaction any Exchange. Specifically excluded from such damages for which Seller would be liable, but not by way of limitation, are any consequential damages Buyer may incur because of a loss of tax advantages, tax deferral or other detrimental tax impacts upon Buyer caused by Seller's default. Buyer hereby acknowledges and represents to Seller that Buyer is relying solely and entirely upon the advice of Buyer's own attorneys and consultants with respect to any and all rights pertaining to aspects of any such Common Stock (and associated Rights)Exchange. In no event whatsoever shall the obligations of Buyer under this Agreement be contingent upon the inclusion of this transaction and/or the Property as part of any Exchange in which Buyer may become involved.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mercury Interactive Corporation)