Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger. (b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration. (i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered. (ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a). (iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a). (iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance. (c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares. (d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 3 contracts
Sources: Merger Agreement (Aspen Technology, Inc.), Merger Agreement (Emerson Electric Co), Merger Agreement (Aspen Technology, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Computershare Trust Company, N.A. (or trust company its successor) as the exchange agent (or such other nationally recognized exchange agent agreed to act as agent between the parties hereto) (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock (the Shares pursuant “Certificates”); provided, however, that any references herein to Section 3.03(a)“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock. Promptly after Prior to the Effective Time, Parent shall enter into an exchange agent agreement, in form and substance reasonably acceptable to the Company, with such Exchange Agent for the payment of the Merger Consideration in accordance with this Agreement. Immediately following the Effective Time, (and in any event no later than the first Business Day afterx) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make Exchange Agent, for the payment benefit of the aggregate Offer Price payable pursuant holders of shares of Company Common Stock issued and outstanding immediately prior to Section 2.01(d). As of the Effective Time, cash in an amount sufficient to pay the aggregate per share Merger Consideration (less the amount of cash directed by Parent to be deposited by the Company pursuant to clause (y)) and (y) at the written request of Parent at least three (3) Business Days prior to the Closing, the Company shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay Exchange Agent, for the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with benefit of the amount deposited pursuant holders of shares of Company Common Stock issued and outstanding immediately prior to the immediately preceding sentence, Effective Time an amount in cash as specified by Parent in such written notice in an amount not to exceed the Company’s then-available cash on hand (the “Payment Fund”). To the extent, following the deposits contemplated by the preceding clauses (x) and (y), such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall (or shall cause the Surviving Corporation to) promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any net profit resulting from, or interest or income produced by, such investments shall be payable to the Surviving Corporation. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Merger Consideration to holders in respect of Shares in the Mergersuch shares of Company Common Stock.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible Promptly after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
any event no later than three (ii3) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable Business Days after the Effective Time, upon surrender Parent shall send, or shall cause the Exchange Agent to send, to each record holder of Shares held shares of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, Company Common Stock at the Company, Effective Time whose shares were converted into the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, right to receive the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (iiiwhich shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) No interest shall accrue or be paid on to the Exchange Agent) for use in such exchange. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration payable shall be entitled to holders of Shares receive the Merger Consideration in accordance with this Section 3.04(b) for the benefit respect of the holder thereofshares of Company Common Stock represented by a Certificate, within two (2) Business Days, upon (i) surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal, or (ii) 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 shares of Company Common Stock, and, in each case, delivery to the Exchange Agent of such other documents as may reasonably be requested by the Exchange Agent. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the applicable Merger Consideration as contemplated by Section 3.03(a)cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 2.
(de) If any Certificate shall have been lost, stolen or destroyed, upon the holder’s compliance with the replacement requirements established by the Exchange Agent, including, if necessary, the posting by such Person of a bond, in such customary amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the shares of Company Common Stock formerly represented by such Certificate, as contemplated under this Article 2.
(f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoConsideration.
Appears in 3 contracts
Sources: Merger Agreement (Tzuo Tien), Merger Agreement (Zuora Inc), Merger Agreement (Slaa Ii (Gp), L.L.C.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of: (i) exchanging the Per Share Common Stock Consideration for certificates representing shares of Company Common Stock (the “Common Stock Certificates”) or uncertificated shares of Company Common Stock (the “Uncertificated Shares”); (ii) exchanging the Per Share Series B Consideration for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment certificates representing shares of the aggregate Offer Price payable pursuant Series B Preferred Stock (the “Series B Certificates”); (iii) exchanging the Per Share Series C Consideration for certificates representing shares of the Series C Preferred Stock (the “Series C Certificates”); and (iv) exchanging the Per Share Warrant Consideration for each share of Company Common Stock subject to Section 2.01(d)the Company Warrants. As of At or as needed promptly following the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to make available to the Exchange Agent: (i) the Common Stock Consideration to be deposited, with paid in respect of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer Common Stock Certificates and the Merger Uncertificated Shares; (ii) the Series B Consideration to holders be paid in respect of Shares the Series B Certificates; (iii) the Series C Consideration to be paid in respect of the MergerSeries C Certificates; and (iv) the Warrant Consideration to be paid in respect of the Company Warrants.
(b) Except As soon as provided in this Section 3.04(breasonably practicable after the Effective Time (but not later than two Business Days thereafter), Parent and the Surviving Corporation shall cause the Exchange Agent to mail to each record holder of shares of Company Common Stock (other than Excluded Shares and Dissenting Shares) at the Effective TimeTime a letter of transmittal and instructions (which shall specify that the delivery shall be effected, holders and risk of Shares shall not be required to take any action with respect loss and title to the exchange shares of their Company Common Stock shall pass, only upon proper delivery of the Common Stock Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for the Merger Consideration.
(i) Any use in such exchange. Each record holder of Shares held in direct registry form through shares of Company Common Stock that have been converted into the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American right to receive the Per Share Common Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Consideration shall be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only upon (i) surrender to the Person in whose name such Shares are registered.
Exchange Agent of a Common Stock Certificate, together with a properly completed and executed letter of transmittal, or (ii) With 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, the Per Share Common Stock Consideration (subject to any applicable withholding Tax specified in Section 2.08) in respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and of the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC Common Stock represented by a Common Stock Certificate or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Common Stock Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive receive, in accordance with the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) terms hereof, such Per Share Common Stock Consideration. If any portion of the payment of any Merger Common Stock Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Common Stock Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Common Stock Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred, in each case, as determined by the Exchange Agent and as set forth in the letter of transmittal and related instructions and (ii) the Person requesting such payment shall have paid all transfer and other similar pay to the Exchange Agent any Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Common Stock Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Exchange Agent and the Surviving Corporation that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed At least five Business Days prior to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Series B Preferred Stock or Series C Preferred Stock a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Series B Certificates or Series C Certificates, as applicable, to the Exchange Agent) for use in such exchange. At the Effective Time or promptly thereafter (but no later than one Business Day thereafter), (i) each holder of a Series B Certificate that has been converted into the right to receive the Per Share Series B Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Series B Certificate, together with a properly completed letter of transmittal, the Per Share Series B Consideration in respect of the Series B Preferred Stock represented by the Series B Certificate and (ii) each holder of a Series C Certificate that has been converted into the right to receive the Per Share Series C Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Series C Certificate, together with a properly completed letter of transmittal, the Per Share Series C Consideration in respect of the Series C Preferred Stock represented by the Series C Certificate. Until so surrendered, each such Series B Certificate and Series C Certificate shall represent after the Effective Time for all purposes only the right to receive such Per Share Series B Consideration and Per Share Series C Consideration, respectively. If any portion of the Series B Consideration or Series C Consideration is to be paid to a Person other than the Person in whose name the surrendered Series B Certificate or Series C Certificate, as applicable, is registered, it shall be a condition to such payment that (i) either such certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Exchange Agent any Taxes required as a result of such payment to a Person other than the registered holder of such certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) Promptly after the Effective Time, Parent shall cause the Exchange Agent to pay to each holder of a Company Warrant as of immediately prior to the Effective Time the Per Share Company Warrant Consideration for each share of Company Common Stock subject to such Company Warrant, payable to such holder pursuant to Section 2.04(a) in accordance with joint written instructions provided by the Company and the holder of such Company Warrant to the Exchange Agent.
(e) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of shares of Company Common Stock or Company Preferred Stock or transfers of Company Warrants. If, after the Effective Time, Common Stock Certificates, Uncertificated Shares, Series B Certificates, Series C Certificates or Company Warrants are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the applicable Per Share Common Stock Consideration, Per Share Series B Consideration, Per Share Series C Consideration or Per Share Warrant Consideration provided for, and in accordance with the procedures set forth, in this Article 2, subject to Applicable Law in the case of Dissenting Shares.
(df) Any portion of the Merger Common Stock Consideration, Series B Consideration, Series C Consideration or Warrant Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a2.04(a) (and including any interest or other income earned thereonproceeds of any investments thereof) that remains unclaimed by the holders of Shares shares of Company Common Stock or Company Preferred Stock or the holders of Company Warrants twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock or Company Preferred Stock or a Company Warrant for the Merger Per Share Common Stock Consideration, Per Share Series B Consideration, Per Share Series C Consideration or Per Share Warrant Consideration, as applicable, in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent (subject to abandoned property, escheat or other similar Applicable Laws) for payment of the Merger Consideration consideration in respect of such Shares shares or warrants without any interest thereon. Notwithstanding the foregoing, neither Parent nor the Surviving Corporation shall not be liable to any holder of Shares shares of Company Common Stock or Company Preferred Stock or the holders of Company Warrants for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoLaws.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Palm Inc), Merger Agreement (Hewlett Packard Co)
Surrender and Payment. (a) Prior to the Acceptance Datedate of mailing of the Joint Proxy Statement/Prospectus, Parent DSW shall appoint a bank or trust company to act as an agent (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) RVI for the purpose of exchanging certificates or book entries, as applicable, which immediately prior to the Effective Time evidenced shares of RVI Common Stock and the associated Common Stock Purchase Rights (the “Certificates”), for the applicable Merger Consideration the Shares pursuant to Section 3.03(a)an exchange agent agreement in form and substance reasonably satisfactory to RVI. Promptly after (and in any event no later than On or before the first Business Day after) the Acceptance DateEffective Time, Parent DSW shall deposit, or shall cause to be deposited, with the Depository Agent Exchange Agent, the Merger Consideration to be exchanged or paid in accordance with this Article II, and DSW shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to make the payment pay any cash payable in lieu of the aggregate Offer Price payable fractional shares pursuant to Section 2.01(d2.4 and any dividends or distributions to which holders of shares of RVI Common Stock may be entitled pursuant to Section 2.3(c). As The Surviving Entity shall send, or shall cause the Exchange Agent to send, to each holder of record of shares of RVI Common Stock immediately prior to the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, Parent (i) a letter of transmittal for use in such exchange (which shall depositbe in form and substance reasonably satisfactory to DSW and RVI and shall specify that the delivery shall be effected, or and risk of loss and title in respect of the Certificates shall cause pass, only upon proper delivery of the Certificates to be deposited, with the Paying Agent cash sufficient Exchange Agent) and (ii) instructions to pay effect the aggregate surrender of the Certificates in exchange for the applicable Merger Consideration and any dividends or other distributions payable in respect thereof pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”2.3(c). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided Each holder of shares of RVI Common Stock that have been converted into the right to receive the applicable Merger Consideration and any dividends or other distributions payable in this respect thereof pursuant to Section 3.04(b2.3(c), at upon surrender to the Exchange Agent of a Certificate or Certificates, together with a properly completed letter of transmittal covering such shares and such other documents as the Exchange Agent may reasonably require, shall be entitled to receive the applicable Merger Consideration payable in respect of such shares of RVI Common Stock. The holder of such Certificate, upon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.3(c). Certificates surrendered shall forthwith be cancelled as of the Effective Time. Until so surrendered, each such Certificate, following the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares represent for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration as contemplated by Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 3.03(a2.4 and any dividends or other distributions payable in respect thereof pursuant to Section 2.3(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.3.
(ivc) If Whenever a dividend or other distribution is declared or made after the payment date hereof with respect to DSW Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all shares of DSW Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the Effective Time with respect to DSW Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the DSW Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.3. Subject to applicable Law, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing whole shares of DSW Common Stock issued in exchange therefor, without interest, 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 DSW Common Stock.
(d) In the event that a transfer of ownership of shares of RVI Common Stock is not registered in the stock transfer books or ledger of RVI, or if any certificate or book entry for the applicable Merger Consideration is to be made to issued in a Person name other than that in which the Person Certificate surrendered in whose name the surrendered Shares exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to the issuance thereof that the Person Certificate so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment exchange shall have paid all to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the payment issuance of the Merger Consideration to a Person certificate or book entry representing shares of DSW Common Stock in any name other than that of the registered holder of the Shares surrenderedsuch shares of RVI Common Stock, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicablepayable. None For purposes of Parentthis Agreement, Purchaser “person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceentity or organization, including a Governmental Entity.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 3 contracts
Sources: Merger Agreement (Retail Ventures Inc), Merger Agreement (DSW Inc.), Merger Agreement (Retail Ventures Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or bank, trust company or nationally recognized stockholder services provider or such other Person reasonably acceptable to act the Company as the exchange agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for Certificates and Book-Entry Shares representing shares of Company Common Stock. Parent will make available to the Exchange Agent, as needed, the Merger Consideration to be delivered in respect of the Shares pursuant to Section 3.03(a)shares of Company Common Stock. Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent shall depositwill send, or shall will cause the Exchange Agent to be depositedsend, with the Depository Agent cash sufficient to make the payment each holder of the aggregate Offer Price payable pursuant to Section 2.01(d). As record of shares of Company Common Stock as of the Effective Time, Parent a letter of transmittal for use in such exchange (which shall depositspecify that the delivery shall be effected, or and risk of loss and title shall cause to be depositedpass, with only upon proper delivery of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Certificates to the immediately preceding sentenceExchange Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the “Payment Fund”)Exchange Agent. The Payment Fund Exchange of any Book-Entry Shares shall not be used for any purpose other than effected in accordance with Parent’s customary procedures with respect to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergersecurities represented by book entry.
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate or Book-Entry Share, together with a properly completed letter of transmittal, will be entitled to receive (i) one or more shares of Parent Common Stock (which shall be in this non-certificated book-entry form unless a physical certificate is requested or required by applicable law) representing, in the aggregate, the number of shares of Parent Common Stock that such holder has the right to receive pursuant to Section 3.04(b1.4 and (ii) a check in the amount equal to any cash payable in lieu of fractional shares which such holder has the right to receive pursuant to Section 2.2 and in respect of any dividends and other distributions which such holder has the right to receive pursuant to Section 2.1(f). No interest shall be paid or accrued on any Merger Consideration, at cash payable in lieu of fractional shares or cash payable in respect of dividends and distributions payable to holders of Certificates or Book-Entry Shares pursuant to Section 2.1(f). Until so surrendered, each such Certificate or Book-Entry Share shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to registered in the name of a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment delivery of the Merger Consideration shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of such registration in the payment name of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not payable. Delivery of the aggregate Merger Consideration, as applicable. None of Parent, Purchaser or the Surviving Corporation with respect to Book-Entry Shares shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall only be deemed to have been paid in full satisfaction of all rights pertaining made to the Person in whose name such Book-Entry Shares formerly represented by such Sharesare registered. After the Effective TimeFor purposes of this Agreement, there shall be no further registration of transfers of Shares“Person” or “person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 3 contracts
Sources: Merger Agreement (Hess Corp), Merger Agreement (Hess Corp), Merger Agreement (Chevron Corp)
Surrender and Payment. (a) Prior At or prior to the Acceptance DateClosing, Parent shall appoint a United States bank or trust company to act as agent or other independent financial institution in the United States (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the ““ Paying Agent”) for that is reasonably acceptable to the purpose of exchanging Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Shares pursuant to Section 3.03(a)Company. Promptly after (The Company and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into a Paying Agent agreement with the Depository Agent cash sufficient to make Paying Agent, which agreement shall set forth the payment duties, responsibilities and obligations of the aggregate Offer Price payable pursuant Paying Agent consistent with the terms of this Agreement. At or prior to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit (or shall cause to be deposited, ) with the Paying Agent Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) this Article III (together with the amount deposited pursuant such cash shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Consideration Fund”). The Payment In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in the Offer and favor of the Merger Consideration but who did not exercise, or who shall have effectively withdrawn or lost, their rights to holders appraisal of Shares such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the Mergerdeficiency required to make such payments.
(b) Except as provided Promptly after the Effective Time (and in this Section 3.04(b), at any event within five (5) Business Days after the Effective Time), holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and deliver risk of loss and title to the Certificates or Book Entry Shares, as promptly applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as possible after reasonably agreed to by the Effective TimeCompany and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person or Certificates in whose name such Shares are registered.
(ii) With respect to Shares heldconnection with, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediariesaccrued on, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofConsideration. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Shares in exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment such exchange that the Person requesting such payment exchange shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of stockholder owning the Shares Book Entry Share transferred or Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(d) At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(de) Any portion of the Merger Consideration made available to Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent, upon demand, and any such holder Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior Article III with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the their claim for Merger Consideration in respect of such Shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying Agent nor any party hereto shall not be liable to any holder Person in respect of Shares for any amount paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by Applicable applicable Law, become the property of Parent free or the Surviving Corporation, and clear any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any claims Certificate shall have been lost, stolen or interest destroyed, upon the making of any an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person previously claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled theretoin respect of such Certificate pursuant to this Article III.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc), Merger Agreement (Skyworks Solutions, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time and LP Mergers Effective Time, as applicable, Parent shall appoint select a bank or trust company financial institution reasonably acceptable to the Company to act as paying agent (for the “Depository Agent”) for purposes of paying Public Merger and the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent LP Mergers (the “Paying Agent”) for and enter into a paying agent agreement, in form and substance reasonably acceptable to the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be depositedCompany, with such Paying Agent. Prior to the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time and LP Mergers Effective Time, Parent shall deposit, deposit or shall cause to be deposited, deposited (i) with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Public Merger Consideration, LP Merger Consideration payable pursuant and Warrant Consideration (if applicable) required to be paid in accordance with Section 3.03(a3.01 and Section 3.02 (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) (together with the Company, cash in an amount deposited pursuant sufficient to pay the immediately preceding sentenceaggregate RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration in accordance with Section 3.06 (such cash shall be referred to in this Agreement as the “Payment Compensatory Award Fund”). The Payment In the event the Exchange Fund or the Compensatory Award Fund shall not be used for any purpose other than insufficient to make the payments in connection with the Public Merger and the LP Mergers contemplated by Section 3.01, Section 3.02 or Section 3.06, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Surviving Corporation, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Public Merger Consideration and LP Merger Consideration contemplated to be issued pursuant to Section 3.01 and Section 3.02 out of the Exchange Fund. Parent shall cause the Surviving Corporation to pay the Offer Price in RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration contemplated to be paid pursuant to Section 3.06 out of the Offer and the Merger Consideration to holders of Shares in the MergerCompensatory Award Fund.
(b) Except As soon as reasonably practicable after the Effective Time and the LP Mergers Effective Time, as applicable, and in any event not later than the second (2nd) Business Day following the Effective Time and the LP Mergers Effective Time, as applicable, Parent will cause the Paying Agent to send to each holder of record (as of immediately prior to the Effective Time and the LP Mergers Effective Time) of (i) an outstanding share of Company Class A Common Stock represented by a Certificate or an outstanding Book-Entry Share immediately prior to the Effective Time (other than the Cancelled Shares and except for any Dissenting Shares and any unvested Company Restricted Stock Awards to be cancelled without payment in respect thereof pursuant to Section 3.06(c)) and (ii) an outstanding Operating Partnership Unit represented by a LP Certificate or an outstanding Book-Entry Unit immediately prior to the LP Mergers Effective Time (other than the Unvested Units, LP Class B Units or Cancelled Units): (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or LP Certificates (or effective affidavits of loss in lieu thereof as provided in this Section 3.04(b)3.04) or Book-Entry Shares or Book-Entry Units, at as applicable, to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Class A Common Stock outstanding immediately prior to the Effective Time, holders of Shares shall not be required to take any action with respect Time and Operating Partnership Units outstanding immediately prior to the LP Mergers Effective Time and entitled to LP Merger Consideration pursuant to Section 3.02 to the Paying Agent, and (y) instructions for use in effecting the surrender of Certificates or LP Certificates (or effective affidavits of loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, in exchange of their Shares for the Public Merger ConsiderationConsideration or LP Merger Consideration in such form as Parent and the Company may reasonably agree.
(ic) Any Upon the surrender of a Certificate or LP Certificate (or affidavit of loss in lieu thereof as provided in Section 3.04) or Book-Entry Shares or Book-Entry Units, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, including the Withholding Certificate from holders of Operating Partnership Units and such other documents as may be reasonably required pursuant to such instructions, the holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known such shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject of immediately prior to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Time or of such Book-Entry Share or Book-Entry Unit immediately prior to the Effective Time shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after practicable (but in any event within two (2) Business Days), an amount in cash (less any applicable withholding Taxes payable in respect thereof) equal to the Effective Time, product obtained by multiplying (i) the number of shares of Company Class A Common Stock or Operating Partnership Units represented by such Certificate or LP Certificate or of such Book-Entry Share or Book-Entry Unit by (ii) the Public Merger Consideration or LP Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates, LP Certificates, Book-Entry Shares so exchanged or Book-Entry Units surrendered shall forthwith be forthwith canceledcancelled. Payment In the event of a transfer of ownership of shares of Company Class A Common Stock or an Operating Partnership Unit that is not registered in the transfer records of the applicable Company or the Operating Partnerships, as applicable, payment of the appropriate amount of Public Merger Consideration with respect to such Shares shall or LP Merger Consideration may be made only to a Person other than the Person in whose name the Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit so surrendered is registered, if such Shares are registeredCertificate or LP Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share or Book-Entry Unit shall be properly transferred. The Paying Agent will accept the Certificates, LP Certificates, Book-Entry Share or Book-Entry Unit upon compliance with such reasonable terms and conditions as the Paying Agent may impose to cause an orderly exchange thereof in accordance with customary exchange practices. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit. Until so surrendered, the Certificates and the LP Certificates, Book-Entry Share or Book-Entry Unit shall be deemed from and after the Effective Time and the LP Mergers Effective Time to evidence only the right to receive the consideration payable in respect thereof pursuant to Section 3.01 or Section 3.02, as applicable.
(iid) With respect Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Agent and the Depository Trust Company (“DTC, DTC’s nominees and such other necessary third-party intermediaries ”) to ensure that (i) if the Closing occurs at or prior to 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees as promptly as practicable after on the Effective Time, upon surrender Closing Date an amount in cash in immediately available funds equal to the number of Shares shares of Company Class A Common Stock and the number of Operating Partnership Units held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures such nominee immediately prior to the Effective Time multiplied by the Public Merger Consideration and the LP Merger Consideration, as applicable (such other procedures as agreed by Parentamount, the Company“DTC Payment”), and (ii) if the Closing occurs after 2:00 P.M. (Eastern time) on the Closing Date, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, Agent will transmit to DTC or its nominee on the Merger Consideration first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a)DTC Payment.
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(ive) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all transfer and other similar pay, or cause to be paid, any Transfer Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsurrendered Certificate, LP Certificate, Book-Entry Share or Book-Entry Unit or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cf) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time and LP Mergers Effective Time, as applicable, there shall be no further registration of transfers of shares of Company Class A Common Stock or Operating Partnership Units that were issued and outstanding immediately prior to the Effective Time, as applicable. From and after the Effective Time and the LP Mergers Effective Time, as applicable, the outstanding shares of Company Class A Common Stock and Operating Partnership Units that are canceled pursuant to Section 3.02 represented by Certificates or LP Certificates immediately prior to the Effective Time, and the Book-Entry Shares or Book-Entry Units outstanding immediately prior to the Effective Time and LP Mergers Effective Time, as applicable, will no longer be outstanding and will be cancelled automatically and cease to exist and each holder thereof shall cease to have any rights with respect to such shares of Company Class A Common Stock and Operating Partnership Units, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time and the LP Mergers Effective Time, as applicable, Certificates, LP Certificates, Book-Entry Shares, Book-Entry Units or the Company Warrants are presented to the Paying Agent, the Surviving Corporation, the Surviving Limited Partnerships or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
(dg) Any portion of the Merger Consideration made available to Exchange Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments of the Exchange Fund) that remains unclaimed by the holders of Shares twelve months shares of Company Class A Common Stock, Operating Partnership Units or the Company Warrants (if applicable) after the date which is one (1) year following the Effective Time shall be returned to Parent or an Affiliate thereof designated by Parent. Any holder of shares of Company Common Stock, upon demand, and any such holder Operating Partnership Units or Company Warrants (if applicable) who has not exchanged such Shares for his, her or its shares of Company Class A Common Stock (including the Merger Consideration shares of the Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)) or Operating Partnership Units in accordance with this Section 3.04 3.03 prior to that time shall thereafter look only to Parent (as general unsecured creditors thereof) for payment delivery of the Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable) or Black-Scholes Value (after giving effect to any required Tax withholdings) in respect of such holder’s shares of Company Class A Common Stock, Operating Partnership Units or Company Warrants. The Company shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Certificates, LP Certificates, Book-Entry Shares without any interest thereonor Book-Entry Units for the Public Merger Consideration, the LP Merger Consideration or the Warrant Consideration (if applicable). Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation or the Surviving Limited Partnerships shall not be liable to any Person, including any former holder of Shares shares of Company Class A Common Stock, Operating Partnership Units, Company Warrants or Company Stock Awards, including for any amount paid Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed To the fullest extent permitted by holders of Shares Law, immediately prior to such time when the amounts date any Public Merger Consideration or LP Merger Consideration would otherwise escheat to or become the property of any Governmental Authority Authority, such Public Merger Consideration and LP Merger Consideration shall become, to the extent permitted by Applicable Law, become the property of Parent Parent, free and clear of any all claims or interest of any Person previously entitled thereto.
(h) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time and the LP Mergers Effective Time, as applicable, the Surviving Corporation or the Surviving Limited Partnerships; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Class A Common Stock or Operating Partnership Units in the amount of such losses and (ii) no such investment shall have maturities that could prevent or materially delay payment obligations of the Parent to be made pursuant to Section 3.03. Any interest or income produced by such investments will be payable to Parent or its designee as directed by ▇▇▇▇▇▇.
(i) All Public Merger Consideration, LP Merger Consideration, Warrant Consideration (if applicable), RSU Consideration, Restricted Stock Consideration and Vested Performance Consideration issued or paid upon conversion of the shares of Company Class A Common Stock (including the shares of the Company Class A Common Stock into which the Company Warrants are exercised pursuant to Section 3.01(e) (if applicable)), Operating Partnership Units or the Company Stock Awards, as applicable, in accordance with the terms of this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Class A Common Stock, Operating Partnership Units, Company Warrants (if applicable) or Company Stock Awards, as the case may be, that were issued and outstanding immediately prior to the Effective Time.
Appears in 3 contracts
Sources: Merger Agreement (Sculptor Capital Management, Inc.), Merger Agreement (Rithm Capital Corp.), Merger Agreement (Sculptor Capital Management, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent the Acquiror shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Continental Stock Transfer & Trust Company (the “Paying Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly after (and in any event no later than At or promptly following the first Business Day after) Effective Time, the Acceptance Date, Parent Acquiror shall deposit, or shall cause the Surviving Corporation to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 6(b), the Acquiror shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all payments required under this Agreement, and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Paying Agent, in connection with the Offer and exchange of shares for the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at Consideration. Promptly after the Effective Time, holders of Shares the Acquiror shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentsend, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Paying Agent) for use in such exchange.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment entitled to receive the Merger Consideration in respect of the applicable Merger Consideration with respect to such Shares shall be made only Company Common Stock represented by a Certificate or Book-Entry Share upon (i) surrender to the Person in whose name Paying Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with other documents as may reasonably be requested by the Paying Agent, DTC, DTCor (ii) receipt of an “agent’s nominees and such other necessary third-party intermediaries to ensure that message” by the Paying Agent will transmit to DTC (or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures evidence, if any, of transfer as agreed by Parent, the Company, the Paying AgentAgent may reasonably request) in the case of Book-Entry Shares. Until so surrendered or transferred, DTCas the case may be, DTC’s nominees and subject to the terms set forth in Section 8, each such other necessary thirdCertificate or Book-party intermediariesEntry Share, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCas applicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Agreement, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person person other than the Person person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes tax required by reason as a result of the such payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Agreement.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six (6) months after the Effective Time shall be returned to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent the Surviving Corporation shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws (as hereinafter defined). Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority governmental entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent the Surviving Corporation free and clear of any claims or interest of any Person person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Paying Agent in respect of any Dissenting Shares shall be returned to the Surviving Corporation, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Sonomawest Holdings Inc), Merger Agreement (Stapleton Acquisition Co)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration the Shares pursuant to as provided in Section 3.03(a)1.2(a) and Section 1.6. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, Contemporaneously with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit with and make available to (or shall cause to be deposited, deposited with and made available to) the Paying Exchange Agent cash sufficient to pay the aggregate Merger full Closing Cash Consideration payable pursuant to Section 3.03(a) (together with in respect of shares of Company Common Stock and Company Warrants, but not any Closing Cash Consideration in respect of any Excluded Shares, Dissenting Shares as of the amount deposited pursuant to Effective Time or, for the immediately preceding sentenceavoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or the Company PSU Cash Consideration (the “Payment Exchange Fund”). The Payment If, for any reason (including losses) the Exchange Fund is inadequate to pay the Closing Cash Consideration in respect of the shares of Company Common Stock and Company Warrants (excluding any Closing Cash Consideration in respect of any Excluded Shares, Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, the Company RSU Cash Consideration or the Company PSU Cash Consideration), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit with and make available to the Exchange Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Exchange Agent shall only be used for the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be payable to the Parent or the Surviving Corporation, as the Parent directs. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to send to each holder of shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary or any Subsidiary of the Company or Parent) a letter of transmittal, in form and substance reasonably acceptable to the Company, and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon transfer of the shares of Company Common Stock to the Exchange Agent). Notwithstanding anything to the contrary contained herein, Parent shall not be used for required to deposit any purpose other than funds related to pay any CVR with the Offer Price in Rights Agent unless and until such deposit is required pursuant to the Offer and the Merger Consideration to holders of Shares in the MergerCVR Agreement.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Consideration shall be entitled to receive, and Parent shall cause upon receipt of an “agent’s message” by the Paying Exchange Agent to pay and deliver (or such other evidence, if any, of transfer as promptly as possible after the Effective TimeExchange Agent may reasonably request), the Merger Consideration to which in respect of such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment holder’s shares of Company Common Stock; provided that no portion of the applicable Merger Consideration with respect to such Shares shall be made only relating to the Person CVRs will be paid unless and until it is required to be paid pursuant to the CVR Agreement. Until the Merger Consideration in whose name respect of a given share of Company Common Stock has been paid, such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust share of Company (“DTC”), Parent and the Company Common Stock shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable represent after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and Time for all purposes only the right to receive such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) Consideration. No interest shall accrue or dividends will be paid or accrue on the any Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit shares of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Company Common Stock.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares a transferred share of Company Common Stock is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such share of Company Common Stock shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay in advance to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such share of Company Common Stock or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After Upon the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares.shares of Company Common Stock. If, after the Effective Time, shares of Company Common Stock are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I.
(de) Any portion of the Merger Closing Cash Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.3(a) that remains unclaimed by the holders of Shares twelve shares of Company Common Stock nine (9) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock nine (9) months after deposit with the Rights Agent, in each case shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) The agreement with the Exchange Agent shall provide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve Parent or the Exchange Agent from making the payments required by this Article I, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America or guaranteed by the United States of America, in commercial paper obligations rated P-1 or A-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as directed by ▇▇▇▇▇▇. To the extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Exchange Agent to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Exchange Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 and Section 1.6 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times fully available for distribution and maintained at a level sufficient for the Exchange Agent to make the payments contemplated by Section 1.2 and Section 1.6.
(g) Any portion of the Closing Cash Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) for the purpose of exchanging for paying the Merger Consideration the Shares pursuant to as provided in Section 3.03(a1.2(a) and Section 1.2(b). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit with and make available to (or shall cause to be deposited, deposited with and made available to) the Paying Agent cash sufficient to pay the aggregate Merger full Closing Cash Consideration payable pursuant to Section 3.03(a) in respect of shares of Company Common Stock and Company Preferred Stock, but not any Closing Cash Consideration in respect of any Excluded Shares and Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, and the Company RSU Cash Consideration (together with the such amount deposited pursuant to the immediately preceding sentencein cash, the “Payment Exchange Fund”). The Payment If, for any reason (including losses) the Exchange Fund is inadequate to pay the Closing Cash Consideration in respect of the shares of Company Common Stock and Company Preferred Stock (excluding any Closing Cash Consideration in respect of any Excluded Shares and Dissenting Shares as of the Effective Time or, for the avoidance of doubt, the Company RSA Cash Consideration, the Company Option Cash Consideration, or the Company RSU Cash Consideration), Parent shall not take all steps necessary to promptly deposit with and make available to the Paying Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Paying Agent shall only be used for any purpose other than the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. Any income from investment of the Exchange Fund will be payable to pay Parent or the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerSurviving Corporation, as Parent directs.
(b) Except as provided Promptly after the Effective Time (but in this Section 3.04(bno event later than two Business Days after the Effective Time), Parent shall cause the Paying Agent to send to each holder of record of a certificate (the “Certificate”) which immediately prior to the Effective Time represented shares of Company Common Stock at the Effective TimeTime (other than the Company, holders Parent, Merger Sub or any Subsidiary of Shares shall not be required to take any action with respect the Company or Parent), (i) a notice advising such holder of the effectiveness of the Merger, (ii) a letter of transmittal, in form and substance reasonably acceptable to the Company, and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of their Shares loss and title shall pass, only upon transfer of the shares of Company Common Stock to the Paying Agent) and (iii) instructions for effecting the surrender of the Certificate in exchange for payment of the Merger Consideration.
(ic) Any holder With respect to shares of Shares Company Common Stock held in direct registry book-entry form through the Company’s transfer agent(“Book-Entry Shares”), Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receiveand Parent shall cooperate to, and Parent shall cause the Paying Agent to, (i) deliver to pay and deliver as promptly as possible after DTC or its nominees, or to holders of Book-Entry Shares, in each case to the Effective Timeextent applicable or required, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration any notice with respect to such the effectiveness of the Merger and any instructions for surrendering Book-Entry Shares shall be made only to the Person in whose name such Shares are registered.
and (ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees Agent and such other necessary third-party intermediaries DTC to ensure that the Paying Agent will transmit to DTC or its nominees as promptly soon as practicable after the Effective Time, upon the surrender of Shares shares of Company Common Stock held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediariesprocedures, the Merger Consideration to which the beneficial owners of payable for each such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a)Book-Entry Share.
(iiid) Upon surrender of a Certificate for cancelation (together with the applicable letter of transmittal, duly executed and properly completed) to, or upon receipt of an “agent’s message” in customary form (or such other evidence of transfer, if any, as the Paying Agent may reasonably request) in respect of a Book-Entry Share by, as the case may be, the Paying Agent or such other agent or agents as may be appointed by P▇▇▇▇▇, the holder of such Certificate or Book-Entry Share shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or Book-Entry Share, and the Certificate or Book-Entry Share so surrendered shall be cancelled.
(e) Notwithstanding anything to the contrary contained herein, Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the CVR Agreement and no portion of the Merger Consideration relating to the CVRs will be paid unless and until it is required to be paid pursuant to the CVR Agreement. Until the Merger Consideration in respect of a given share of Company Common Stock has been paid, such share of Company Common Stock shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration. No interest shall accrue or dividends will be paid or accrue on the any Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit shares of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Company Common Stock.
(ivf) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares a transferred share of Company Common Stock is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such share of Company Common Stock shall be properly endorsed or be otherwise in proper form and (ii) the Person requesting such payment shall have paid all pay in advance to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such share of Company Common Stock or shall have established establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cg) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After Upon the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares.shares of Company Common Stock. If, after the Effective Time, shares of Company Common Stock are presented to the Surviving Corporation or the Paying Agent, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I.
(dh) Any portion of the Merger Closing Cash Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.3(a) that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time and any portion of any amounts payable in respect of the CVRs and made available to the Rights Agent that remains unclaimed by the holders of shares of Company Common Stock twelve (12) months after deposit with the Rights Agent, in each case shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Paying Agent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(i) The agreement with the Paying Agent shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve Parent or the Paying Agent from making the payments required by this Article I, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America or guaranteed by the United States of America, in commercial paper obligations rated P-1 or A-1 or better by M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Financial Services LLC, respectively, in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion, or in money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as directed by P▇▇▇▇▇. To the extent (A) there are any losses with respect to any investments of the Exchange Fund; (B) the Exchange Fund diminishes for any reason below the level required for the Paying Agent to promptly pay the cash amounts contemplated by Section 1.2; or (C) all or any portion of the Exchange Fund is unavailable for Parent (or the Paying Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times fully available for distribution and maintained at a level sufficient for the Paying Agent to make the payments contemplated by Section 1.2.
(j) Any portion of the Closing Cash Consideration made available to the Paying Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent and Company shall jointly appoint a bank or trust company to act as agent depositary (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”"Depositary") for the purpose of exchanging certificates representing shares of Company Common Stock for the Merger Cash Consideration and the Shares pursuant Split-Off Consideration. The Depositary shall be Bank of America National Trust and Savings Association. Parent will pay to Section 3.03(athe Depositary immediately prior to the Effective Time, the Cash Consideration, and the Company shall cause A&S to deposit with the Depositary the Split-Off Consideration (comprised of shares of A&S Common Stock and cash sufficient to pay any fractional shares), to be paid in respect of the shares of Company Common Stock. For purposes of determining the Cash Consideration and the Split-Off Consideration to be so paid, Parent and Company shall assume that no holder of shares of Company Common Stock will perfect his right to appraisal of his shares of Company Common Stock. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositwill send, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall will cause the Paying Agent Depositary to pay and deliver as promptly as possible send, but in no event later than three (3) business days after the Effective Time, to each holder of shares of Company Common Stock at the Merger Consideration to Effective Time a letter of transmittal for use in such exchange (which such holder shall become entitled pursuant Section 3.03(a)specify that the delivery shall be effected, and the Shares so exchanged risk of loss and title shall be forthwith canceled. Payment pass, only upon proper delivery of the applicable Merger Consideration with respect to such Shares shall be made only certificates representing shares of Company Common Stock to the Person Depositary) and instructions for use in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through effecting the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held shares of record by DTC or its nominees Company Common Stock in accordance with DTC’s customary surrender procedures exchange for the Cash Consideration and such other procedures as agreed by ParentSplit-Off Consideration, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No no interest shall accrue or be paid on the Merger any Cash Consideration payable upon the surrender of certificates.
(b) Each holder of shares of Company Common Stock that have been converted into the right to holders receive the Cash Consideration and Split-Off Consideration, upon surrender to the Depositary of Shares a certificate or certificates properly representing such shares of Company Common Stock, together with a properly completed letter of transmittal covering such shares of Company Common Stock, will be entitled to receive the Cash Consideration and Split-Off Consideration payable in accordance with this Section 3.04(b) for the benefit respect of the holder thereofsuch shares of Company Common Stock less any amounts required to be withheld under applicable federal, state, local or foreign income tax regulations. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05so surrendered, each Share shall be deemed at any time such certificate shall, after the Effective Time to Time, represent for all purposes, only the right to receive such Cash Consideration and Split-Off Consideration. No certificates representing fractional shares of A&S Common Stock shall be issued upon the applicable Merger Consideration surrender for exchange of shares of Company Common Stock, and such fractional share interests will not entitle the owner thereof to vote or to any other rights as contemplated a shareholder of A&S. Each holder of shares of Company Common Stock who would otherwise be entitled to receive a fractional share of A&S Common Stock shall receive from the Depositary an amount in cash (the "Fractional Share Payment") equal to the product obtained by multiplying (i) the fractional share interest to which such holder (after taking into account all shares of Company Common Stock held at the Effective Time by such holder) would otherwise be entitled by (ii) the mean between the high and low trading prices of A&S Common Stock on the first full day of trading following the Closing (as defined in Section 3.03(a3.7 below) (the "Trading Value").
(ivc) If any portion of the payment of any Merger Cash Consideration and Split-Off Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedshares of Company Common Stock represented by the certificate or certificates surrendered in exchange therefor, it shall be a condition to such payment that the certificate or certificates so surrendered shall have established be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall pay to the Depositary any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such shares of Company Common Stock or establish to the satisfaction of the Surviving Corporation Depositary that such Taxes either have tax has been paid or are is not applicablepayable. None For purposes of Parentthis Merger Agreement, Purchaser "Person" means an individual, a corporation, limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a government or political subdivision or any circumstanceagency or instrumentality thereof.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Essef Corp), Merger Agreement (Pentair Inc)
Surrender and Payment. (a) Prior to the Acceptance Mailing Date, Parent CME Group shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent NYMEX Holdings (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging Certificates for the Merger Consideration. As soon as reasonably practicable after the Effective Time, but in no event more than seven (7) Business Days following the Effective Time, CME Group will send, or will cause the Exchange Agent to send, to each holder of record of shares of NYMEX Holdings Common Securities as of the Effective Time (and, to the extent commercially practicable, to make available for collection by hand if so elected by such holder of record), whose shares of NYMEX Holdings Common Securities were converted into the right to receive the Merger Consideration the Shares pursuant to Section 3.03(a1.9 (Effect on Capital Stock) and Section 1.10 (Election Procedures), a letter of transmittal (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as NYMEX Holdings and CME Group may reasonably agree, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration. Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent shall deposit, or CME Group shall cause to be deposited, deposited with the Depository Agent Exchange Agent, in trust for the benefit of the holders of shares of NYMEX Holdings Common Securities, shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form) and an amount of cash in U.S. dollars sufficient to make the payment of the aggregate Offer Price payable be issued and paid pursuant to Section 2.01(d1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares), payable upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of Article I and Article II. As of Following the Effective Time, Parent shall depositCME Group agrees to make available to the Exchange Agent, or shall cause from time to be depositedtime as needed, with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends and other distributions pursuant to Section 3.03(a) (together 2.1(f). All cash and book-entry shares representing CME Group Class A Common Stock deposited with the amount deposited Exchange Agent shall be referred to in this Agreement as the “Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the immediately preceding sentenceMerger Consideration contemplated to be issued pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and Section 2.5 (No Fractional Shares) out of the “Payment Exchange Fund”). The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except Exchange Fund as directed by CME Group; provided in this Section 3.04(b), at the Effective Time, holders of Shares that no such investment or losses thereon shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on affect the Merger Consideration payable to holders of NYMEX Holdings Shares entitled to receive such consideration or cash in accordance with this Section 3.04(b) lieu of fractional interests and CME Group shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of NYMEX Holdings Shares entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, CME Group.
(b) Each holder of shares of NYMEX Holdings Common Securities that have been converted into the right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) the number of shares of CME Group Class A Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of CME Group Class A Common Stock, if any, that such holder has the right to receive and/or (ii) a check in the amount, if any, that such holder has the right to receive, including cash payable in lieu of fractional shares pursuant to Section 2.5 (No Fractional Shares) and dividends and other distributions payable pursuant to Section 2.1(f) (less any required Tax withholding), pursuant to Section 1.9 (Effect on Capital Stock), Section 1.10 (Election Procedures) and this Article II. The Merger Consideration shall be paid as promptly as practicable (by mail or, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of a Certificate) after receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05so surrendered, each Share shall be deemed at any time such Certificate shall, after the Effective Time to Time, represent for all purposes only the right to receive the applicable such Merger Consideration as contemplated by Section 3.03(a)Consideration.
(ivc) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, Purchaser it shall be a condition to the registration thereof that the surrendered Certificate shall be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of NYMEX Holdings Common Securities. From and after the Effective Time, the holders of Certificates representing shares of NYMEX Holdings Common Securities outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of NYMEX Holdings Common Securities except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent or CME Group, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in Article I and this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of NYMEX Holdings Common Securities one (1) year after the Effective Time shall be returned to ParentCME Group, upon demand, and any such holder who has not exchanged such Shares his or her shares of NYMEX Holdings Common Securities for the Merger Consideration in accordance with this Section 3.04 2.1 prior to that time shall thereafter look only to Parent CME Group for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of NYMEX Holdings Common Securities. Notwithstanding the foregoing, Parent neither CME Group, Merger Sub nor NYMEX Holdings shall not be liable to any holder of Shares shares of NYMEX Holdings Common Securities for any amount paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts Merger Consideration remaining unclaimed by holders of Shares shares of NYMEX Holdings Common Securities immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEntity shall, to the extent permitted by Applicable applicable Law, become the property of Parent CME Group free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to shares of CME Group Class A Common Stock issued in the Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.1. Following such surrender, subject to the effect of escheat, Tax or other applicable Law, there shall be paid, without interest, to the record holder of the shares of CME Group Class A Common Stock, if any, issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of any such shares of CME Group Class A Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such shares of CME Group Class A Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of shares of CME Group Class A Common Stock, all shares of CME Group Class A Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(g) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 2.1 to pay for shares of NYMEX Holdings Common Securities for which appraisal rights shall have been perfected shall be returned to CME Group, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging shares of Company Common Stock for the Merger Stock Consideration payable in respect thereof. As soon as reasonably practicable after the Shares Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of one or more Certificates as of the Effective Time, whose shares of Company Common Stock were converted into the right to receive the Stock Consideration pursuant to Section 3.03(a2.6 (Effect on Capital Stock). Promptly after , a letter of transmittal (which shall specify that delivery shall be effected, and in any event no later than risk of loss and title to the first Business Day after) the Acceptance DateCertificates shall pass, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment only upon proper delivery of the aggregate Offer Price payable pursuant Certificates to Section 2.01(d)the Exchange Agent) in such form as Parent may specify subject to the Company’s reasonable approval prior to the Effective Time, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Stock Consideration. As of At the Effective Time, Parent shall deposit, or shall cause to be deposited, deposited with the Paying Exchange Agent, for the benefit of the holders of shares of Company Common Stock, shares of Parent Common Stock (which shall be in non-certificated book-entry form) to be issued pursuant to Section 2.6 (Effect on Capital Stock) and an amount of cash in U.S. dollars sufficient to be paid pursuant to Section 3.5 (No Fractional Shares), payable to holders of the Book-Entry Shares or payable to the holders of Certificates upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof), in each case, pursuant to the provisions of Article II and this Article III (it being understood and agreed, for the avoidance of doubt, that Parent shall not be required to deposit any funds related to any CVR with the Rights Agent unless and until such deposit is required pursuant to the terms of the CVR Agreement). With respect to any Dissenting Shares, Parent shall not be required to deposit or cause to be deposited with the Exchange Agent any funds or shares of Parent Common Stock. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends pursuant to Section 3.03(a3.1(f) (together Dividends). All cash and book-entry shares representing Parent Common Stock deposited with the amount deposited pursuant Exchange Agent shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Exchange Fund”). The Payment Exchange Agent shall deliver the Stock Consideration (and any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) or cash to be paid for dividends in accordance with Section 3.1(f)) out of the Exchange Fund. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the Merger Consideration to holders of Shares in the Mergerproperty of, and paid to, Parent.
(b) Except as provided in this Section 3.04(b), at Each holder of one or more Certificate(s) representing shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
, upon surrender to the Exchange Agent of such Certificate(s) (or effective affidavit of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) Any the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (ii) if applicable, any cash to be paid in lieu of Shares held any fractional share of Parent Common Stock in direct registry form through the Company’s transfer agentaccordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLCany dividends in accordance with Section 3.1(f) (the “Company Transfer Agent”) Dividends), in each case, without interest (less any required Tax withholding). Until so surrendered, each such Certificate shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, represent for all purposes only the right to receive such (A) Merger Consideration to which such Consideration, (B) cash in lieu of any fractional shares and (C) unpaid dividends. No holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Book-Entry Shares shall be required to deliver a Certificate or completed letter of transmittal to the Exchange Agent to receive (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required Tax withholding). No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends payable to holders of Certificates or Book-Entry Shares.
(c) With respect to Certificate(s), in the event of a transfer of ownership of any Certificate that is not registered in the transfer books of the Company as of the Effective Time, (i) any Stock Consideration, (ii) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, may be issued or paid to such a transferee if the Certificate is presented to the Exchange Agent, properly endorsed or otherwise in proper form for transfer, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable, in each case, in form and substance, reasonably satisfactory to the Exchange Agent. With respect to Book-Entry Shares, issuance or payment of (1) any Stock Consideration, (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, shall only be made only to the Person in whose name such Book-Entry Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees registered in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason Company as of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in Article II and this Article III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of Company Common Stock one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his or her shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 3.1 prior to that time shall thereafter look only to Parent for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of Company Common Stock. Notwithstanding the foregoing, Parent neither Parent, Merger Sub, nor the Company shall not be liable to any holder of Shares shares of Company Common Stock for any amount paid Merger Consideration, cash in lieu of fractional shares or any unpaid dividends delivered to a public official any Governmental Entity pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or any unpaid dividends remaining unclaimed by holders of Shares shares of Company Common Stock immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEntity shall, to the extent permitted by Applicable applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends with respect to shares of Parent Common Stock issued in the Merger shall be paid to the holder of any Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered or transferred, as applicable, as provided in this Section 3.1. Following such surrender, subject to the effect of escheat or abandoned property (in accordance with Section 3.1(e)), Tax or other applicable Law, shall be paid, without interest, to the record holder of the shares of Parent Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends payable in respect of such shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Progenics Pharmaceuticals Inc), Agreement and Plan of Merger (Lantheus Holdings, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (or, in the Shares pursuant case of Company Stock Options, an amount based thereon) (i) certificates representing shares of Company Common Stock (the “Certificates”), (ii) subject to Section 3.03(a). Promptly after 2.05, uncertificated shares of Company Common Stock (and in any event no later than the first Business Day after“Uncertificated Shares”) the Acceptance Date, Parent shall depositor (iii) Company Stock Options, or shall cause Company Restricted Stock Units held by Non-Employee Holders. At or prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Agent, in trust for the benefit of the holders of shares of Company Common Stock, cash in U.S. dollars in an amount sufficient to pay the aggregate amount of the Merger Consideration payable pursuant (or, in the case of Company Stock Options, the aggregate amount based thereon) to Section 3.03(a) be paid in respect of the Certificates, the Uncertificated Shares, and Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units held by Non-Employee Holders (together any funds deposited with the amount deposited pursuant to the immediately preceding sentencePaying Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at purpose. Promptly after the Effective Time, holders of Shares Parent shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentsend, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each holder of shares of Company Common Stock or each Non-Employee Holder who holds Company Stock Options, Company Stock Appreciation Rights, Company Performance Shares or Company Restricted Stock Units at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent and which shall include customary provisions with respect to delivery of an “agent’s message” with respect to shares of Company Common Stock held in book-entry form) for use in such exchange.
(b) 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 (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment in respect of the applicable Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration with respect to Consideration. Upon such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)surrender, Parent and the Company shall cooperate to establish procedures with the Paying Agentpay, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that or cause the Paying Agent will transmit to DTC or its nominees as promptly as practicable after pay from the Effective TimePayment Fund, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders each such holder pursuant to this Article 2. Each Non-Employee Holder of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only Company Stock Options that have been converted into the right to receive the applicable Merger Consideration as contemplated by a cash amount in accordance with Section 3.03(a)2.05 shall be entitled to receive such cash amount upon delivery of a properly completed letter of transmittal.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to (or, in the case of Company Stock Options, an amount based thereon) deposited with the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.03(a) that remains unclaimed by the holders of Shares shares of Company Common Stock or Non-Employee Holders twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock or Company Stock Options for the Merger Consideration (or, in the case of Company Stock Options, an amount based thereon) in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock or any Non-Employee Holder for any amount amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior shares of Company Stock that, pursuant to such time when the amounts Applicable Law, would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) to pay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent, upon demand.
(g) The Paying Agent shall invest any cash in the Payment Fund as directed by Parent; provided that Parent shall not direct the Paying Agent to invest any cash in the Payment Fund in any investment if such investment would, or would reasonably be expected to, prevent or delay timely payment of the Merger Consideration pursuant to this Agreement. Any interest and other income resulting from such investments shall be paid to Parent. In the event the Payment Fund shall be insufficient to pay the aggregate Merger Consideration (or, in the case of Company Stock Options, the aggregate amount based thereon) payable in connection with the Merger, Parent shall, or shall cause the Surviving Corporation to, promptly deposit additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payment.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent VStock Transfer, LLC (the “Paying Agent”) for to act as paying agent in connection with the purpose of exchanging for consideration to be paid to the Merger Consideration the Shares Company Securityholders pursuant to Section 3.03(a). Promptly after (a paying agent agreement among Parent, Representative and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay in the aggregate Merger Consideration payable pursuant to Section 3.03(a) form attached hereto as Exhibit B (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment FundPaying Agent Agreement”). The Payment Fund All of Paying Agent’s fees and expenses shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerborne by Parent.
(b) Except As soon as provided practicable following the date hereof, Company shall, or shall cause the Paying Agent to, send a notice, Letter of Transmittal in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known attached hereto as American Stock Transfer & Trust Company, LLC) Exhibit C (the “Company Transfer AgentLetter of Transmittal”) shall, subject and acknowledgements of cancellation to compliance with customary procedures each Company Securityholder advising such holder of the Mergers and the procedure for surrendering to the Paying Agent and such holder’s certificate(s) representing Company Stock or Convertible Debt (collectively, “Exchange Documentation”) in exchange for the payment of such portion of the Aggregate Merger Consideration to which the Company Transfer AgentSecurityholders are entitled pursuant to Section 1.3. Each Company Securityholder, automatically upon proper surrender of Exchange Documentation to the Effective TimePaying Agent in accordance with the instructions in such notice, shall be entitled to receive, in exchange therefor, the payments required by Section 1.3. Until properly surrendered, such Exchange Documentation shall be deemed for all purposes to evidence only the right to receive the payments required by Section 1.3. All Parent Shares will be book entry only.
(c) Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Company Securityholders and Creditors with Unpaid Contractual Obligations, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and shall have no liability to any party to this Agreement or to any Company Securityholder, Company shareholder or Company Creditor for any payment not reflected on the Distribution Schedule. The Distribution Schedule shall include:
(i) the name and address (as listed in the corporate record books of Company);
(ii) the allocation of the Aggregate Merger Consideration among the Creditors and Company Securityholders, determined in accordance with the Company Charter as in effect as of immediately prior to the Effective Time, including the allocation of any cash consideration and any Parent Shares issuable to each Company Securityholder and the allocation of the Closing Merger Consideration payable to each Creditor and Company Securityholder.
(d) At the Closing, Parent shall deposit the Closing Merger Consideration with the Paying Agent. Promptly after the Effective Time, Parent shall cause the Paying Agent to deliver to each Company Securityholder who has completed and returned the requisite Exchange Documentation to the Paying Agent, together with Company Stock Certificates representing outstanding shares of Company Stock or original copies of the Company’s Convertible Debt notes (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond) and any Company Creditors, the Closing Merger Consideration payable to such Company Securityholder or Creditor, and in any event within three (3) Business Days after return of such documentation to the Paying Agent; provided, however, that Parent shall cause the Paying Agent to deliver the Closing Merger Consideration on the Closing Date to each Company Securityholder who at least three (3) Business Days prior to the Closing has completed and returned the requisite Exchange Documentation to the Paying Agent, together with Company Stock Certificates representing outstanding shares of Company Stock or original copies of the Company’s Convertible Debt notes (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond) and any Company Creditors.
(e) Parent shall not be required to pay any amount of the Closing Merger Consideration or any portion of any Earnout Payment to any Company Securityholder until receipt by the Paying Agent from such Company Securityholder of properly completed and executed Letters of Transmittal and the applicable Company Stock Certificate or original Convertible Debt note (or an affidavit of lost instrument in form reasonably acceptable to Parent but without any bond (except as may be required by the Paying Agent)).
(f) The Parent Shares pursuant to the terms of this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and/or Regulation D promulgated under the Securities Act and may not be re-offered or resold other than in conformity with the registration requirements of the Securities Act and such other applicable rules and regulations or pursuant to an exemption therefrom. Until the resale by the Company Securityholders or Creditors of their Parent Shares has become registered under the Securities Act, or otherwise transferable pursuant to an exemption from such registration otherwise required thereunder, the Parent Shares issued to the Company Securityholders or Creditors shall be characterized as “restricted securities” under the Securities Act and, if certificated, shall bear the following legend (or if held in book entry form, will be noted with a similar restriction): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT.” Parent agrees to cooperate in a timely manner with the Company Securityholders or Creditors holding registrable securities to remove any restrictive legends or similar transfer instructions from the registrable Securities upon the registration of the registrable securities or in the event that the registrable securities are otherwise transferable pursuant to an exemption from registration otherwise required thereunder.
(g) At such times and subject to the terms and conditions set forth in Annex 1 hereto, as additional consideration for the Merger, and subject to the setoff rights of Parent Indemnitees pursuant to Article 7 hereof, after the Effective Time, Parent shall deliver the Earnout Payments to Paying Agent to distribute to the Company Securityholders and Creditors in accordance with each the Distribution Allocation. Any such Earnout Payments, including, without limitation, the Accelerated Payment, shall be payable in cash and/or Parent Shares (valued at the average closing price of Parent Shares as promptly reported on OTC Markets (or such national or foreign securities exchange on which Parent’s shares are listed) for the ten (10) trading days immediately prior to the date of issuance), pursuant to an allocation of 60% in cash and 40% in Parent Shares, unless otherwise agreed by Parent and the Representative in writing.
(h) Until surrendered in accordance with this Agreement, each Company Stock Certificate or Convertible Debt note shall represent after the Effective Time for all purposes only the right to receive payment as possible provided in this Agreement.
(i) At any time following the day that is twelve (12) months after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged Parent shall be forthwith canceled. Payment of the applicable Merger Consideration with respect entitled to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that require the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of deliver to it any funds (including any earnings received with respect thereto) and Parent Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have had been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant with respect to Section 3.04(a) (the Closing Merger Consideration and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time have not been disbursed to Company Securityholders and thereafter such Company Securityholders shall be returned entitled to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to the Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable (subject to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, Laws) and only as general creditors thereof with respect to the extent permitted by Applicable Lawapplicable portion of Closing Merger Consideration payable to them, the property of Parent free and clear of any claims or without interest of any Person previously entitled theretothereon.
Appears in 2 contracts
Sources: Merger Agreement (Aytu Bioscience, Inc), Merger Agreement (Aytu Bioscience, Inc)
Surrender and Payment. (a) Prior At or prior to the Acceptance DateClosing, Parent shall appoint a United States bank or trust company to act as agent (or other independent financial institution in the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent United States (the “Paying and Exchange Agent”) for that is reasonably acceptable to the purpose of exchanging Company to act, among other things, as paying agent and exchange agent for the Merger and to deliver the Merger Consideration to former stockholders of the Shares pursuant to Section 3.03(a)Company. The Company and Parent shall enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying and Exchange Agent consistent with the terms of this Agreement. Promptly after (and in any event no later than the first Business Day after) Effective Time on the Acceptance Closing Date, Parent shall deposit, deposit (or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, ) with the Paying Agent cash and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount sufficient to pay the aggregate Merger Consideration payable pursuant required to Section 3.03(a) be paid by the Paying and Exchange Agent in accordance with this Agreement (together with the amount deposited pursuant such cash and Parent Common Stock shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Consideration Fund”). The Payment In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in the Offer and favor of the Merger Consideration but who did not exercise, or who shall have effectively withdrawn or lost, their rights to holders appraisal of Shares such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the Mergerdeficiency required to make such payments.
(b) Except as provided Promptly after the Effective Time (and in this Section 3.04(b), at any event within five (5) Business Days after the Effective Time), holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying and Exchange Agent to pay mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and deliver risk of loss and title to the Certificates or Book Entry Shares, as promptly applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying and Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as possible after reasonably agreed to by the Effective TimeCompany and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares so exchanged shall be forthwith canceled. Payment or Certificates in connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the applicable Merger Consideration issuance of any fractional shares or dividends or distributions payable with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofShare Consideration. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Shares in exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment such exchange that the Person requesting such payment exchange shall have paid all pay to the Paying and Exchange Agent any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of stockholder owning the Shares Book Entry Share transferred or Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying and Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(d) At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying and Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IV, except as otherwise provided by Law.
(de) Any portion of the Merger Consideration made available to Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent, upon demand, and any such holder Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the their claim for Merger Consideration in respect of such Shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying and Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of Shares for any amount paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by Applicable applicable Law, become the property of Parent free or the Surviving Corporation, and clear any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 4.1(d) will be paid to the holders of any claims unsurrendered Certificates or interest Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of record of such Certificates or Book Entry Shares shall surrender such Certificates or Book Entry Shares. Subject to applicable Law, following surrender of any Person previously entitled theretosuch Certificates or Book Entry Shares, the Paying and Exchange Agent shall deliver to the holders thereof, without interest (i) promptly after such surrender, the Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares pursuant to Section 4.1(d) and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such Parent Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Surrender and Payment. (a) Prior At or prior to the Acceptance Datedate that is not less than two (2) months prior to the anticipated Effective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging Certificates representing shares of Company Common Stock for the Merger Consideration in accordance with this Article IV. As promptly as reasonably practicable after the Shares pursuant to Section 3.03(a). Promptly after appointment of the Exchange Agent (and but in any event no later than within ten (10) Business Days after the first date thereof), Parent and the Company will develop and finalize a letter of transmittal which shall be in customary form and have such other provisions as to which Parent and the Company may reasonably agree (which letter of transmittal shall specify that the delivery of the Merger Consideration shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) (the “Letter of Transmittal”) for use in effecting delivery of shares of Company Common Stock to the Exchange Agent. At or as promptly as reasonably practicable after finalizing such Letter of Transmittal (but in any event within ten (10) Business Day afterDays after the date thereof and at least ten (10) Business Days prior to the Acceptance DateEffective Time), Parent shall depositcause the Exchange Agent to send to each holder of record of shares of Company Common Stock on the date thereof, and from time to time thereafter as requested by Parent or shall cause the Company, a Letter of Transmittal, together with instructions for effecting the surrender of Certificates in exchange for the Merger Consideration.
(b) At or prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash Exchange Agent, in trust for the benefit of the holders of shares of Company Common Stock (other than any Cancelled Shares), for exchange in accordance with this Article IV, evidence of book-entry shares (or certificates if requested by any such holder) representing the number of shares of Parent Common Stock and an amount of cash, in each case, sufficient to pay to the aggregate Merger holders of shares of Company Common Stock the Per Share Cash Consideration and the Per Share Stock Consideration (such certificates or book-entry shares for shares of Parent Common Stock and cash in Dollars, together with cash in lieu of fractional shares in accordance with Section 4.3 and any dividends or distributions with respect to the shares of Parent Common Stock in accordance with Section 4.2(h), being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 3.03(a) (together with the amount deposited 4.1 in exchange for outstanding shares of Company Common Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the immediately preceding sentenceMerger Consideration contemplated to be paid pursuant to Section 4.1 out of the Exchange Fund. Parent agrees to make available to the Exchange Agent from time to time as needed, any cash in lieu of fractional shares of Parent Common Stock to be issued and paid in consideration therefor pursuant to Section 4.3 and any dividends or distributions to which such holder is entitled pursuant to Section 4.2(h) of this Agreement. Except as specified in this Section 4.2, the “Payment Fund”). The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(bc) Except The Exchange Agent shall invest any cash included in the Exchange Fund as provided directed by Parent on a daily basis in this Section 3.04(b)(i) short-term direct obligations of the United States of America with maturities of no more than thirty (30) days or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest; provided, at that no gain or loss thereon shall affect the Effective Time, amounts payable to the holders of Shares Company Common Stock pursuant to this Article IV. If for any reason (including losses) the cash in the Exchange Fund shall not be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations.
(d) Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed and validly executed Letter of Transmittal in accordance with the instructions thereto, and such other documents as may be required pursuant to take any action such instructions, will be entitled to receive (i) one or more shares of Parent Common Stock (which shall be in uncertificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock that such holder has the right to receive pursuant to Section 4.1 and (ii) a check (or, with respect to the exchange Principal Stockholder and the holders of their Shares for shares of Company Common Stock set forth on Section 4.2(d) of the Company Disclosure Letter, by wire transfer of immediately available Dollar funds) in an amount equal to the cash portion of the Merger Consideration that such holder has the right to receive pursuant to Section 4.1 and the other provisions contained in this Article IV, including cash payable in lieu of fractional shares in accordance with Section 4.3 and dividends and other distributions in accordance with Section 4.2(h). No interest shall be paid or accrued on any Merger Consideration.
(i) Any holder , cash payable in lieu of Shares held fractional shares in direct registry form through the Company’s transfer agentaccordance with Section 4.3 or dividends and other distributions in accordance with Section 4.2(h). Until so surrendered, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) each such Certificate shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration as contemplated by Consideration, cash payable in lieu of fractional shares in accordance with Section 3.03(a4.3 and dividends and other distributions in accordance with Section 4.2(h).
(ive) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay, or cause to be paid, any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsurrendered Certificate, or required for any other reason relating to such holder or requesting Person, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, Purchaser it shall be a condition to the registration thereof that the surrendered Certificate shall be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the Merger Consideration shall pay, or cause to be paid, to the Exchange Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cf) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At the Effective Time, the share transfer books of the Company shall be closed and thereafter, there shall be no further registration of transfers Transfers of Sharesshares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except the right to receive the consideration provided for, and in accordance with the procedures set forth, in this Article IV or as otherwise provided herein or by Applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent, the Surviving Corporation or Parent, such Certificates shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article IV.
(dg) Any portion of the Merger Consideration made available to Exchange Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by undistributed to the holders of Shares twelve months shares of Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his, her or its shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 4.2 prior to that time shall thereafter look only to Parent for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares. Notwithstanding the foregoing, Parent neither Parent, Merger Sub, the Company nor the Surviving Corporation shall not be liable to any holder of Shares shares of Company Common Stock for any amount paid Merger Consideration or other amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts portion of the Exchange Fund remaining unclaimed by holders of Shares immediately shares of Company Common Stock three (3) years after the Effective Time (or such earlier date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeAuthority) shall, to the extent permitted by Applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(h) No dividends or other distributions with respect to shares of Parent Common Stock issued in the Merger shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 4.2. Following such surrender, subject to the effect of escheat, Tax or other Applicable Law, there shall be paid, without interest, to the record holder of the shares of Parent Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(i) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 4.2 to pay for Dissenting Shares for which appraisal rights shall have been perfected shall be returned to Parent upon the settlement or final and non-appealable adjudication of any claim for appraisal rights asserted with respect to such Dissenting Shares.
(j) All Merger Consideration issued and paid to a holder of Company Common Stock upon conversion of the Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 4.2(h) or Section 4.3) shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Company Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company reasonably acceptable to the Company to act as disbursing agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Disbursing Agent”) for the purpose of receiving and exchanging the payment of Merger Consideration for the benefit of the Company stockholders upon surrender of certificates representing the Shares. The Disbursing Agent shall also act as the agent for the Company stockholders for the purpose of holding the certificates representing the Shares and shall obtain no rights or interests in the Shares represented by such certificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.6(b) to holders of Shares (such amounts being hereinafter referred to as the “Exchange Fund”). For purposes of determining the aggregate amount to be so deposited, Parent and Merger Consideration Subsidiary shall assume that no stockholders of the Company will perfect any right to appraisal of his, her or its Shares. The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation or (iv) a combination of any of the foregoing; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.03(a3.6(b). Promptly after Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.6(b) shall be promptly paid to Parent. If for any reason (including losses) such funds are inadequate to pay all amounts to which holders of Shares shall be entitled hereunder, Parent shall promptly deposit or cause to be deposited additional cash with the Disbursing Agent sufficient to make all payments required under this Agreement, and Parent and the Merger Subsidiary shall in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the liable for payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”)thereof. The Payment Exchange Fund shall not be used for any purpose other than to purpose. Parent shall bear and pay all charges and expenses, including those of the Offer Price Disbursing Agent, incurred in connection with the Offer exchange of Shares and the Merger Consideration to holders of Shares in the MergerExchange Fund.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Disbursing Agent to pay and deliver as mail promptly as possible after the Effective Time, but in no event later than the Merger Consideration third (3rd) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates which such holder shall become entitled pursuant Section 3.03(aimmediately prior to the Effective Time represented Shares (the “Certificates”), and whose Shares were converted into the Shares so exchanged right to receive Merger Consideration pursuant to Section 3.6(b), (i) a form of letter of transmittal (which shall specify that delivery shall be forthwith canceled. Payment effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the applicable Merger Consideration with respect to such Shares shall be made only Certificates to the Person in whose name such Shares are registered.
Disbursing Agent) and (ii) With respect instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to Shares heldthe Disbursing Agent for cancellation, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures together with the Paying Agent, DTC, DTC’s nominees such letter of transmittal duly executed and such other necessary third-party intermediaries to ensure that documents as may be reasonably required by the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by ParentDisbursing Agent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners holder of such Shares held, directly or indirectly through DTC, Certificate shall become be entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on receive in exchange therefor the Merger Consideration payable in respect of that Certificate, less any required withholding of Taxes, to holders of Shares in accordance with this Section 3.04(bbe mailed within five (5) for the benefit Business Days of the holder thereofreceipt of such Certificate and executed letter of transmittal by the Distributing Agent, and such Certificate shall forthwith be canceled. Until exchanged as contemplated by this Section 3.04(b) No interest will be paid or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after accrued on the Effective Time to represent only cash payable upon the right to receive surrender of the applicable Merger Consideration as contemplated by Section 3.03(a)Certificates.
(ivc) If the payment of any portion of the Merger Consideration is to be made to a Person other than the Person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment of such Merger Consideration that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all pay any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have Tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.7, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Purchaser or Shares held by the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration for each Share formerly represented by such Certificate.
(ce) All At and after the Effective Time, there shall be no further registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be no further registration of transfers of Sharesclosed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(apay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand by Parent. At any time more than eighteen (18) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingthis Agreement, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or and other similar lawsLaws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held by them. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental unit or agency, shall, to the extent permitted by Applicable applicable Law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate for any Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 2 contracts
Sources: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Disbursing Agent”) for the purpose payment of exchanging for the Merger Consideration upon surrender of certificates representing the Shares Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.03(a3.06(b). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Depository Disbursing Agent cash sufficient in an aggregate amount necessary to make the payment of the aggregate Offer Price payable payments pursuant to Section 2.01(d). As 3.06(b) to holders of the Effective Time, Parent shall deposit, or shall cause Shares (such amounts being hereinafter referred to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, as the “Payment Exchange Fund”). The Payment Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that such investments shall not be used (i) direct obligations of the United States of America, (ii) obligations for any purpose other than which the full faith and credit of the United States of America is pledged to pay provide for the Offer Price in payment of principal and interest, or (iii) commercial paper rated the Offer and highest quality by either ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the Merger Consideration amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the Mergeramounts payable under Section 3.06(b) shall be promptly paid to Parent.
(b) Except as provided in this Section 3.04(b), at Merger Subsidiary shall instruct the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Disbursing Agent to pay and deliver as mail promptly as possible after the Effective Time, but in no event later than the Merger Consideration fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which such holder shall become entitled pursuant Section 3.03(aimmediately prior to the Effective Time represented Shares (the “Certificates”), and whose Shares were converted into the Shares so exchanged right to receive Merger Consideration pursuant to Section 3.06(b), a form of letter of transmittal (which shall specify that delivery shall be forthwith canceled. Payment effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the applicable Merger Consideration with respect to such Shares shall be made only Certificates to the Person Disbursing Agent) and instructions for use in whose name effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation, together with such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees letter of transmittal duly executed and such other necessary third-party intermediaries to ensure that documents as may be reasonably required by the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by ParentDisbursing Agent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners holder of such Shares held, directly or indirectly through DTC, Certificate shall become be entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on receive in exchange therefor the Merger Consideration payable to holders in respect of Shares in accordance with this Section 3.04(b) for that Certificate, less any required withholding of Taxes, and such Certificate shall forthwith be cancelled. No interest will be paid or accrued on the benefit cash payable upon the surrender of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Certificates.
(ivc) If the payment of any Merger Consideration is to be made to a Person person other than the Person person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Purchaser or Shares held by the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration.
(ce) All At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time the stock ledger of the Company shall be no further registration of transfers of Sharesclosed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(a) (and pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any interest or other income earned thereon) that remains unclaimed by the holders of Shares time more than twelve months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Merger Consideration in respect Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of such Shares without any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest thereonof any person previously entitled thereto. Notwithstanding the foregoing, Parent none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall not be liable to any holder of Shares a Certificate for any amount paid Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to applicable any abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
Surrender and Payment. (a) Prior At or prior to the Acceptance DateClosing, Parent shall appoint a United States bank or trust company to act as agent (or other independent financial institution in the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent United States (the “Paying and Exchange Agent”) for that is reasonably acceptable to the purpose of exchanging Company to act, among other things, as paying agent and exchange agent for the Merger and to deliver the Merger Consideration to former stockholders of the Shares pursuant to Section 3.03(a)Company. The Company and Parent shall enter into a Paying and Exchange Agent agreement with the Paying and Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Paying and Exchange Agent consistent with the terms of this Agreement. Promptly after (and in any event no later than the first Business Day after) Effective Time on the Acceptance Closing Date, Parent shall deposit, deposit (or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, ) with the Paying Agent cash and Exchange Agent, for the account and benefit of the former holders of Company Common Stock, the aggregate Cash Consideration payable and the aggregate number of shares of Parent Common Stock issuable pursuant to this Article IV, in an amount sufficient to pay the aggregate Merger Consideration payable pursuant required to Section 3.03(a) be paid by the Paying and Exchange Agent in accordance with this Agreement (together with the amount deposited pursuant such cash and Parent Common Stock shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Consideration Fund”). The Payment In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d) and any dividends or distributions which holders of Company Common Stock may be entitled pursuant to Section 4.2(h). In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price in the Offer and the Merger Consideration (including with respect to holders Company Common Stock held by stockholders who did not exercise, or who shall have effectively withdrawn or lost, their rights to appraisal of Shares such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds and shares of Parent Common Stock to the Paying and Exchange Agent in an amount that is equal to the Mergerdeficiency required to make such payments.
(b) Except as provided Promptly after the Effective Time (and in this Section 3.04(b), at any event within five (5) Business Days after the Effective Time), holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying and Exchange Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration mail to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in each stockholder whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as contemplated by Section 3.03(a).
applicable, shall pass, only upon proper delivery of the Certificates (ivor affidavits of loss in lieu thereof) If or transfer of the Book Entry Shares to the Paying and Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying and Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying and Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares or Certificates in connection with, or accrued on, the Merger Consideration, any cash paid in lieu of the issuance of any fractional shares or dividends or distributions payable with respect to Share Consideration. If any Merger Consideration is to be made paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Shares in exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment such exchange that the Person requesting such payment exchange shall have paid all pay to the Paying and Exchange Agent any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of stockholder owning the Shares Book Entry Share transferred or Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying and Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger The cash in the Consideration Fund shall be invested by the Paying and Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying and Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying and Exchange Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(d) At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying and Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IV, except as otherwise provided by Law.
(de) Any portion of the Merger Consideration made available to Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent, upon demand, and any such holder Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the their claim for Merger Consideration in respect of such Shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying and Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of Shares for any amount paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by Applicable applicable Law, become the property of Parent free or the Surviving Corporation, and clear any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying and Exchange Agent) by the Person claiming such certificate to be lost, stolen or destroyed, the Paying and Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled in respect of such Certificate pursuant to this Article IV.
(h) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 4.1(d) will be paid to the holders of any claims unsurrendered Certificates or interest Book Entry Shares with respect to Parent Common Stock represented thereby until the holders of record of such Certificates or Book Entry Shares shall surrender such Certificates or Book Entry Shares. Subject to applicable Law, following surrender of any Person previously entitled theretosuch Certificates or Book Entry Shares, the Paying and Exchange Agent shall deliver to the holders thereof, without interest (i) promptly after such surrender, the Cash Consideration payable and the Share Consideration payable in exchange therefor, in each case pursuant to Section 4.1(a), along with payment in lieu of fractional shares pursuant to Section 4.1(d) and the amount of any such dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such Parent Common Stock, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and a payment date subsequent to such surrender payable with respect to such Parent Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent and Merger Sub shall appoint a bank Computershare Trust Company, N.A. or trust company to act such other paying agent as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price designated by Parent and Merger Sub and reasonably acceptable to the holders of Shares that become entitled Company from time to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent time (the “Paying Agent”) to act as the agent for the purpose of exchanging for paying the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after in exchange for: (and in any event no later than the first Business Day afteri) the Acceptance Date, Parent shall depositCertificates, or shall cause (ii) Book-Entry Shares. At or prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective TimeClosing, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable required to be paid pursuant to Section 3.03(a) this Article IV (together with the amount deposited pursuant such cash being hereinafter referred to the immediately preceding sentence, as the “Payment Exchange Fund”). If the Exchange Fund is inadequate to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares for any reason, Parent shall take all steps necessary to promptly (and in any case, within five (5) Business Days) deposit additional cash with the Paying Agent sufficient to pay all Merger Consideration required to be paid pursuant to this Article IV, and Parent shall in any event be liable for the payment thereof. Parent shall pay all charges and expenses, including those of the Paying Agent, incurred in connection with the exchange of Common Shares for the Merger Consideration. The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price Merger Consideration that is payable in respect of all of the Offer Common Shares represented by the Certificates and the Merger Consideration to holders of Shares Book-Entry Shares. Promptly after the Effective Time (and in the Merger.
any case, within five (b5) Except as provided in this Section 3.04(bBusiness Days), at the Effective TimeParent shall send, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of Common Shares at the Effective Time, the Merger Consideration to which a letter of transmittal in such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), form as Parent and the Company shall cooperate reasonably agree (the “Letter of Transmittal”) and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or upon delivery of an “agent’s message” regarding the book-entry transfer of the Book-Entry Shares to establish procedures the Paying Agent) for use in such exchange.
(b) Upon (i) surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu of the Certificate as provided in Section 4.5), together with a duly completed and validly executed Letter of Transmittal and such other documents as may reasonably be requested by the Paying Agent, DTC, DTCor (ii) receipt of an “agent’s nominees and such other necessary third-party intermediaries to ensure that message” by the Paying Agent will transmit to DTC (or its nominees such other evidence, if any, of transfer as promptly as practicable after the Effective TimePaying Agent may reasonably request) in the case of Book-Entry Shares, upon surrender the holder of Shares held such Certificate or holder of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares heldBook-Entry Shares, directly or indirectly through DTCas the case may be, shall become be entitled pursuant to receive a cash amount (after giving effect to any required Tax withholdings as provided in Section 3.03(a).
4.4) equal to the product of (iiii) No interest shall accrue the Offer Price and (ii) the number of Common Shares represented by such Certificate (or be paid on the Merger Consideration payable to holders affidavit of Shares loss in accordance with this Section 3.04(b) for the benefit lieu of the holder thereofCertificate as provided in Section 4.5) or Book-Entry Shares, as the case may be. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated the case may be, and subject to the terms set forth in Section 3.054.3, each Share such Certificate or Book-Entry Share, as applicable, shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration Offer Price or the right to demand to be paid the “fair value” of the Common Shares represented thereby as contemplated by Section 3.03(a)4.3. No interest 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 IV.
(ivc) If any of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid payable upon the surrender of Certificates or transfer of 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 Common Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Certificate or Book-Entry Shares.
(de) Any portion of the Merger Consideration Exchange Fund made available to the Paying Agent pursuant to Section 3.04(a) (and in respect of any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time Dissenting Shares, if any, shall be returned to Parent, upon demand.
(f) Any portion of the Exchange Fund deposited with the Paying Agent which remains unpaid to the holders of Common Shares for twelve (12) months after the Effective Time shall be delivered to Parent upon demand, and any such holder holders of Common Shares who has have not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior to that time Article IV shall thereafter look only to Parent for payment of the allocable Merger Consideration in respect of such Shares Consideration, without any interest thereon. Notwithstanding thereon but subject to any applicable withholdings.
(g) None of Parent, the foregoing, Parent Company or the Surviving Corporation shall not be liable to any holder of Common Shares for any amount paid portion of the Merger Consideration delivered to a public official pursuant to applicable any abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Applicable Law.
(h) No dividends or other distributions with respect to capital stock of Shares immediately prior the Company with a record date on or after the Effective Time shall be paid to such time when the amounts would otherwise escheat to or become property holder of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretounsurrendered Certificates.
Appears in 2 contracts
Sources: Merger Agreement (Everest Merger Sub, Inc.), Merger Agreement (Sport Chalet Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the "Exchange Agent") to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the "Book-Entry Shares"). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant in respect of all of the shares of Company Common Stock and Company Preferred Stock represented by the Certificates and the Book-Entry Shares (the "Payment Fund") in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.03(a) (together 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the amount deposited pursuant Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the immediately preceding sentence, Surviving Corporation shall in any event be liable for the “Payment Fund”)payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and Company Preferred Stock for the Merger Consideration Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock and Company Preferred Stock at the Effective Time, a letter of transmittal and instructions (which shall specify
26995100v.1 that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock or Company Preferred Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock or Company Preferred Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an "agent's message" by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries Entry Shares. Until so surrendered or transferred, as the case may be, and subject to ensure that the Paying Agent will transmit to DTC terms set forth in Section 3.03, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock or Company Preferred Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock or Company Preferred Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock or Company Preferred Stock for the Merger Consideration in accordance with this Section 3.04 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock or Company Preferred Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock 26995100v.1 or Company Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Merger Sub shall appoint a enter into an agreement with the Company’s transfer agent or another bank or trust company mutually acceptable to Parent and the Company to act as paying agent (in connection with the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Merger (the “Paying Agent”) for the purpose of exchanging for to receive the Merger Consideration to which stockholders of the Shares Company shall become entitled pursuant to Section 3.03(a)this Article II. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit (or shall cause to be deposited, ) with the Paying Agent cash in an amount sufficient to pay the aggregate Merger Consideration payable make all payments pursuant to Section 3.03(a) (together with the amount deposited pursuant this Article II owed in respect of Shares represented by Certificates or Book-Entry Shares issued and outstanding immediately prior to the immediately preceding sentence, Effective Time (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to this Article II, except as provided in this Agreement. The Surviving Corporation shall pay all charges and expenses of the Offer Price Paying Agent in connection with the Offer and exchange of Shares for the Merger Consideration to holders of Shares in the Mergercontemplated by this Article II.
(b) Except as provided in this Section 3.04(b), at Promptly after the Effective Time, holders of Shares shall Time and in any event not be required to take any action with respect to later than the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after fifth Business Day following the Effective Time, the Surviving Corporation shall direct the Paying Agent to mail to each holder of record of an outstanding certificate or outstanding certificates (“Certificates”), and to each holder of uncertificated Shares represented by book entry (“Book-Entry Shares”), that immediately prior to the Effective Time represented outstanding Shares that were converted into the right to receive the Merger Consideration with respect thereto pursuant to Section 2.1(a), (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares held by such Person shall pass, only upon (x) adherence to the procedures set forth in the letter of transmittal and (y) in the case of Shares represented by Certificates, only upon proper delivery of such Certificates to the Paying Agent, and shall be in such form and have such other provisions as Parent and the Company may reasonably agree and shall be prepared prior to Closing) and (ii) instructions for use in effecting the surrender of Certificates and Book-Entry Shares in exchange for the Merger Consideration payable with respect thereto pursuant to Section 2.1(a). Surrender of any Book-Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry. Upon surrender of a Certificate or Book-Entry Share to the Paying Agent, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Paying Agent, the holder of such Certificate or Book-Entry Share shall become be entitled pursuant Section 3.03(ato receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate or each Book-Entry Share so surrendered (subject to deduction for any required withholding Tax), and the Shares Certificate, if any, so exchanged surrendered shall forthwith be forthwith canceledcancelled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on the Merger Consideration payable to holders in respect of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) Certificates or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Book-Entry Shares.
(ivc) If the payment of any the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares Certificate or Book-Entry Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that (i) the Person requesting such payment present proper evidence of transfer and, if applicable, the surrendered Certificate shall be properly endorsed and otherwise in proper form for transfer or, in the case of Book-Entry Shares, the Person in whose name such Book-Entry Shares are registered shall have delivered to the Paying Agent instruments of transfer in such form as the Paying Agent may require in accordance with its customary procedures for the transfer for securities represented by book entry and (ii) the Person requesting such payment shall have paid all any transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Certificate or Book-Entry Share surrendered or shall have established to the satisfaction of the Surviving Corporation that such Taxes Tax either have has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(cd) Until surrendered as contemplated by this Section 2.3, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration payable in respect of Shares theretofore represented by such Certificate or Book-Entry Shares, as applicable, pursuant to Section 2.1(a), without any interest thereon.
(e) All Merger Consideration cash paid upon the transfer surrender for exchange of Certificates or Book-Entry Shares in accordance with the terms hereof of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Certificates or Book-Entry Shares. After At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of Certificates or Book-Entry Shares that evidenced ownership of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration, except as otherwise provided by applicable Law. Subject to the penultimate sentence of Section 2.3(g), if, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for transfer (or for any other reason) or transfer is sought for Book-Entry Shares, such Certificates or Book-Entry Shares shall be cancelled and exchanged as provided in this Article II.
(df) Any portion The Paying Agent shall invest any cash included in the Payment Fund as directed by Parent; provided, that any investment of such cash shall in all events be in short-term obligations of the Merger Consideration United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including investment losses) the cash in the Payment Fund is insufficient to fully satisfy all of the payment obligations to be made in cash by the Paying Agent hereunder (but subject to Section 2.4), Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations. Any interest and other income resulting from such investments shall be payable to, and shall be the property of, Parent.
(g) At any time following the date that is six months after the Effective Time, Parent shall be entitled to require the Paying Agent to deliver to it any funds (including any interest received with respect thereto) which have been made available to the Paying Agent pursuant and which have not been disbursed to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time Certificates or Book-Entry Shares, and thereafter such holders shall be returned entitled to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of and the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable Surviving Corporation (subject to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or other similar laws) only as general unsecured creditors thereof with respect to the Merger Consideration payable upon due surrender of their Certificate or Book-Entry Shares. Any amounts remaining unclaimed by such holders of Shares immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority Entity shall become, to the extent permitted by Applicable applicable Law, the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit, in form and substance reasonably acceptable to Parent, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Paying Agent, Parent or the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the Shares formerly represented by such Certificate, as contemplated by this Article II.
Appears in 2 contracts
Sources: Merger Agreement (MKS Instruments Inc), Merger Agreement (Newport Corp)
Surrender and Payment. (a) Prior to At the Acceptance DateEffective Time the stock transfer books of Sagebrush shall be closed, Parent and no transfer of any share of Sagebrush Common Stock theretofore outstanding shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to thereafter be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d)made. As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly soon as practicable after the Effective Time, each holder of Sagebrush Common Stock converted pursuant to Section 2.5(b), upon surrender, for cancellation, to an exchange agent designated by WSMP, subject to the approval of Sagebrush (such approval not to be withheld or delayed unreasonaly), prior to the Merger (the "Exchange Agent"), of one or more certificates previously representing Sagebrush Common Stock, will be entitled to receive (i) certificates representing Merger Consideration, as provided in Section 2.5(c), and (ii) a check for the applicable cash amount, if any, as provided in Section 2.6, in each case in respect of the aggregate number of shares of Sagebrush Common Stock previously represented by the certificate or certificates surrendered and promptly canceled after receipt thereof by the Exchange Agent. As promptly as practicable after the Closing Date, WSMP shall cause the Exchange Agent to deliver or mail to each shareholder of Sagebrush a letter of transmittal and instructions for use in surrendering, in exchange for Merger consideration, the certificates that immediately prior to the Effective Time represented shares of Sagebrush Common Stock. Upon the surrender of Shares held such certificates, together with such letter of record by DTC or its nominees in accordance with DTC’s customary surrender procedures transmittal and such other procedures documents as agreed by Parentmay reasonably be requested, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, WSMP shall promptly cause the Merger Consideration to which be issued and delivered to the beneficial owners persons entitled therto. No dividend or other distribution payable following the Closing with respect to shares of WSMP Common Stock to be recieved as Merger Consideration shall be paid, and there shall be no right to vote such Shares heldshares of WSMP Common Stock, directly until the Sagebrush shareholder has tendered the certificate or indirectly through DTCcertificates representing shares of Sagebrush Common Stock to be exchanged for Merger Consideration, it being understood, however, that such tender when made shall become entitled pursuant relate back to Section 3.03(a).
(iii) the Effective Time for the purposes of any rights to receive dividends and other distributions with respect to WSMP Common Stock distributable to holders of record after the Effective Time. No interest shall accrue or will be paid or acccrued on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for upon the benefit surrender of the holder thereofcertificate or certificates representing shares of Sagebrush Common Stock or on dividends or other distributions deferred as described in the immediately preceding sentence. Until exchanged as contemplated by this Section 3.04(b) With respect to any certificate for Sagebrush Common Stock that has been lost or as otherwise contemplated in Section 3.05destroyed, each Share WSMP shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of cause the Merger Consideration attributable to a Person other than the registered holder such certificate to be paid upon receipt of evidence and indemnity reasonably satisfactory to it of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceshares represented thereby.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Sagebrush Inc), Merger Agreement (WSMP Inc)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b)PACIFIC shall, at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent Time and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held a DISTRIBUTORS Certificate (hereinafter defined), deliver to each holder of record by DTC of one or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parentmore certificates representing DISTRIBUTORS Common Stock (collectively, the Company"DISTRIBUTORS Certificates") that has been converted into PACIFIC Common Stock as set forth in Section 1(f), a certificate or certificates representing the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to number of PACIFIC Common Stock into which the beneficial owners of such Shares held, directly or indirectly through DTC, shares represented by the DISTRIBUTORS Certificate so surrendered shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged have been converted as contemplated by this Section 3.04(b) or as otherwise contemplated provided in Section 3.05, each Share shall be deemed at 1(f). If any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration PACIFIC Common Stock is to be made to issued in a Person name other than the Person that in whose name the which a DISTRIBUTORS Certificate so surrendered Shares is registered on the stock transfer books of the Companythen registered, it shall be a condition of payment such exchange that the Person requesting such payment shall have paid all transfer and other similar Taxes required DISTRIBUTORS Certificate surrendered be accompanied by reason of the payment of any applicable transfer taxes and documents required for a valid transfer in the Merger Consideration to a Person other than the registered holder reasonable judgment of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicablePACIFIC and its counsel. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer From and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After after the Effective Time, there until so surrendered, each DISTRIBUTORS Certificate shall be deemed for all corporate purposes, except as set forth below, to evidence the number of PACIFIC Common Stock into which the DISTRIBUTORS Common Stock represented by such DISTRIBUTORS Certificate shall have been converted. Unless and until any DISTRIBUTORS Certificate shall be so surrendered, the holder of such DISTRIBUTORS Certificate shall have no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available right to the Paying Agent pursuant vote or to Section 3.04(a) (and receive any interest dividends or other income earned thereon) that remains unclaimed by the distributions made to holders of Shares twelve months record of PACIFIC Common Stock after the Effective Time. Upon surrender of a DISTRIBUTORS Certificate, the holder of record thereof shall receive, together with certificates representing PACIFIC Common Stock to which he shall be entitled in accordance with Section 1(f), all dividends and other distributions which shall have theretofore been paid or made to holders of record of PACIFIC Common Stock after the Effective Time with respect to such shares. PACIFIC shall be returned authorized to Parentdeliver certificates for PACIFIC Common Stock attributable to any DISTRIBUTORS Certificate theretofore issued which has been lost or destroyed upon receipt of satisfactory evidence of ownership of the shares of DISTRIBUTORS Common Stock formerly represented thereby and of appropriate indemnification of PACIFIC. Exhibit B annexed hereto sets forth each holder of record of DISTRIBUTORS Common Stock, upon demandthe number of shares of DISTRIBUTORS Common Stock owned by such holder, and any the DISTRIBUTORS Certificate(s) representing the shares of DISTRIBUTORS Common Stock owned by such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoholder.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Development Corp), Merger Agreement (Pacific Development Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as paying agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) to act as the agent for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Paying Agent, in connection with the Offer and exchange of the shares of Company Common Stock for the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at Consideration. Promptly after the Effective Time, holders of Shares Parent shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentsend, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the Merger Consideration to which such holder delivery shall become entitled pursuant Section 3.03(a)be effected, and the Shares so exchanged risk of loss and title shall be forthwith canceled. Payment pass, only upon proper delivery of the applicable Merger Consideration with respect to such Certificates or transfer of the Book-Entry Shares shall be made only to the Person Paying Agent) for use in whose name such Shares are registered.
(ii) With respect exchange. Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Agent and the Depository Trust Company (“DTC, DTC’s nominees and such other necessary third-party intermediaries ”) to ensure that (i) if the Closing occurs prior to 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees as promptly as practicable after on the Effective Time, upon surrender Closing Date an amount in cash in immediately available funds equal to the number of Shares shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time multiplied by the Merger Consideration (such amount, the “DTC Payment”), and (ii) if the Closing occurs after 11:30 a.m. Eastern Standard Time on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the first Business Day after the Closing Date an amount in accordance cash in immediately available funds equal to the DTC Payment.
(b) 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 Book-Entry Share upon (i) surrender to the Paying Agent of a Certificate, together with DTC’s customary surrender procedures a duly completed and validly executed letter of transmittal and such other procedures documents as agreed may reasonably be requested by Parent, the Company, the Paying Agent, DTC, DTCor (ii) receipt of an “agent’s nominees and message” by the Paying Agent (or such other necessary thirdevidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-party intermediariesEntry Shares. Until so surrendered or transferred, as the Merger Consideration case may be, and subject to which the beneficial owners of terms set forth in Section 2.03, each such Shares heldCertificate or Book-Entry Share, directly or indirectly through DTCas applicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Paying Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Access to Money, Inc.), Merger Agreement (Cardtronics Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Acquirer shall appoint a bank or trust company an exchange agent reasonably acceptable to the Target (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Target Common Stock (the “Book-Entry Shares”). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent Acquirer shall deposit, or shall cause to be deposited, deposit with the Paying Agent cash Exchange Agent, sufficient shares of Acquirer Common Stock to pay the aggregate Per Share Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Target Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Acquirer shall take all steps necessary to promptly to deposit in trust additional shares of Acquirer Common Stock with the Exchange Agent sufficient to make all payments required under this Agreement, and Acquirer and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than purpose. The Acquirer shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares of Target Common Stock for the Per Share Merger Consideration. Promptly after the Effective Time, Acquirer shall send, or shall cause the Exchange Agent to pay send, to each record holder of shares of Target Common Stock at the Offer Price Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Offer and the Merger Consideration to holders of Shares in the Mergersuch exchange.
(b) Except as provided Each holder of shares of Target Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in this Section 3.04(b), at respect of the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
Target Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries Entry Shares. Until so surrendered or transferred, as the case may be, and subject to ensure that the Paying Agent will transmit to DTC terms set forth in Section 2.03, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Per Share Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Per Share Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Per Share Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Target Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Target Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve six (6) months after the Effective Time shall be returned to ParentAcquirer, upon demand, and any such holder who has not exchanged such Shares shares of Target Common Stock or Target Preferred Stock for the Per Share Merger Consideration in accordance with this Section 3.04 2.02 prior to that time shall thereafter look only to Parent Acquirer for payment of the Per Share Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent Acquirer shall not be liable to any holder of Shares shares of Target Common Stock or Target Preferred Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Target Common Stock or Target Preferred Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent Acquirer free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Acquirer, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Vapor Corp.), Merger Agreement (Vaporin, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Paying Agent (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book‑Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, in each case, other than the Cancelled Shares and any Dissenting Shares. At or prior to the Closing, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant (other than the Company Equity Award Consideration) required to Section 3.03(a) be paid by the Paying Agent in accordance with this Agreement (together with the amount deposited pursuant such cash shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Exchange Fund”). In the event the Exchange Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Payment Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration (other than the Company Equity Award Consideration) contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will direct the Paying Agent to send to each holder of Shares shall record of a Certificate or Certificates or who holds their shares of Company Common Stock directly and not be required to take any action with respect in “street name” as of immediately prior to the exchange Effective Time (other than the Cancelled Shares and any shares in respect of their Shares Company Equity Awards and except for any Dissenting Shares) and each holder of Unexchanged Shares, to the extent such holder remains entitled to proceeds under the 2021 Merger Consideration.Agreement in accordance with its terms and applicable Law (each, an “LoT Holder”)
(i) Any holder a letter of Shares held in direct registry form through transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLCCertificate(s) (the “Company Transfer Agent”) shallor customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent), subject to compliance with customary procedures of the Paying Agent Agent) in such form as Parent and the Company Transfer may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, automatically upon and (ii) instructions for use in effecting the surrender of Certificates (or customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent), as applicable, in exchange for the Merger Consideration in such form as Parent and the Company may reasonably agree.
(c) Upon the surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof which is reasonably acceptable to Parent), as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or by the Paying Agent, the holder of the shares of Company Common Stock represented by such Certificate or otherwise constituting an LoT Holder as of immediately prior to the Effective Time, Time (other than any shares in respect of Company Equity Awards or Company Warrants) shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within three (3) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Shares so exchanged Certificates surrendered shall forthwith be forthwith canceled. Payment Upon receipt of an “agent’s message” by the applicable Merger Consideration with Paying Agent (or such other evidence, if any, of transfer as the Paying Agent may reasonably request) in the case of Book-Entry Shares held in “street name” and not in respect to of any LoT Holders, the holders of such Book-Entry Shares shall be made only entitled to receive the Merger Consideration pursuant to the Person in whose name such Shares are registered.
(ii) With respect to Shares heldprovisions of this Article III, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate transferred Book-Entry Shares so surrendered will be canceled. No holder of Book-Entry Shares will be required to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries provide a Certificate or an executed letter of transmittal to ensure that the Paying Agent will transmit in order to DTC or its nominees as promptly as practicable after receive the Effective Time, upon surrender payment that such holder is entitled to receive pursuant to this Article III. In the event of Shares held a transfer of record by DTC or its nominees ownership of Company Common Stock that is not registered in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the transfer records of the Company, payment of the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the appropriate amount of Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to may be made to a Person other than the Person in whose name the Certificate or Book‑Entry Share so surrendered Shares is registered on the stock transfer books of the Companyregistered, it subject to Section 3.02(e), if such Certificate shall be a condition of payment that the Person requesting such payment shall have paid properly endorsed or otherwise be in proper form for transfer (and accompanied by all transfer and other similar Taxes documents reasonably required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Paying Agent) or such Book‑Entry Share shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been be properly transferred. No interest shall be paid or are not applicable. None accrue on any cash payable upon surrender of Parent, Purchaser any Certificate or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of SharesBook‑Entry Share.
(d) Any portion Prior to the Effective Time, Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time (or such other time as may be mutually agreed in writing by Parent and the Company) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date or within two (2) Business Days thereof an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time (other than the Cancelled Shares and any shares in respect of Company Equity Awards and except for any Dissenting Shares) multiplied by the Merger Consideration made available to (such amount, the “DTC Payment”), and (ii) if the Closing occurs after such time on the Closing Date, the Paying Agent pursuant will transmit to Section 3.04(aDTC or its nominee on the third (3rd) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months Business Day after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration Closing Date an amount in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration cash in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, available funds equal to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoDTC Payment.
Appears in 2 contracts
Sources: Merger Agreement (Doma Holdings, Inc.), Merger Agreement (Doma Holdings, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a commercial bank or trust company that is reasonably satisfactory to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration to the Shares pursuant to Section 3.03(a). Promptly after (holders of Company Common Stock and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into an Exchange Agent Agreement with the Depository Agent cash sufficient Exchange Agent. At or prior to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Exchange Agent, for the benefit (from and after the Effective Time) of the holders of shares of Company Common Stock, for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock issuable as Stock Consideration and (ii) cash sufficient to pay the aggregate Merger Consideration Cash Consideration. In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of fractional shares payable pursuant to Section 3.03(a1.06(b) (together and to pay any dividends or other distributions payable pursuant to Section 1.03(f). All book-entry shares and cash deposited with the amount deposited Exchange Agent pursuant to the immediately preceding sentence, this Section 1.03(a) shall herewith be referred to as the “Payment Exchange Fund”. Promptly after the Effective Time (and in any event within two Business Days following the Closing Date). The Payment Fund , Parent shall not be used for any purpose other than send, or shall cause the Exchange Agent to pay send, to each Person who was, immediately prior to the Offer Price in the Offer and Effective Time, a holder of record of shares of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to holders Section 1.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in the Mergersuch payment.
(b) Except 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 (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as provided the Exchange Agent may reasonably request) in this Section 3.04(b)the case of a book-entry transfer of Uncertificated Shares, at the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time, holders of Shares shall not be required Time for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid The stock transfer books of the Company shall be closed immediately upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, Time and there shall be no further registration of transfers of Sharesshares of Company Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and converted into the right to receive only the Merger Consideration to the extent provided for, and in accordance with and subject to the procedures set forth, in this Article 1.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.03(a) that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six months after the Effective Time shall be returned delivered to Parent or otherwise on the instruction of Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 1.06(b), will be paid to the holders of any unsurrendered Certificates or Uncertificated Shares with respect to the shares of Parent Common Stock issuable upon surrender thereof until the holder of such Certificates or Uncertificated Shares shall surrender such Certificates or Uncertificated Shares in accordance with the terms of this Section 1.03. Subject to Applicable Law, promptly following the surrender of any such Certificates or Uncertificated Shares, the Exchange Agent shall deliver to the holders thereof, without interest, any dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such whole shares of Parent Common Stock and, 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 a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares pursuant to Section 3.03(a(the “Uncertificated Shares”). Promptly after (The Company and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into a Paying Agent agreement with the Depository Paying Agent cash sufficient to make which agreement shall set forth the payment duties, responsibilities and obligations of the aggregate Offer Price payable pursuant Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to Section 2.01(d)the Company and Parent prior to the Effective Time. As of Immediately prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, deposit with the Paying Agent (or shall cause the Company to deposit with the Paying Agent), cash sufficient to pay the aggregate Merger Consideration payable pursuant (the “Aggregate Merger Consideration”) to Section 3.03(a) be paid in respect of the Certificates and the Uncertificated Shares (together with the amount deposited pursuant to the immediately preceding sentencesuch cash, the “Payment Consideration Fund”). The Payment In addition, promptly after the Effective Time on the date of the Closing, Parent shall make available (or shall cause the Company to make available) as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Effective Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price in the Offer and the Merger Consideration (including on account of any Merger Consideration returned to holders of Shares in the Merger.
(b) Except as provided in this Parent pursuant to Section 3.04(b2.03(g)), at Parent shall promptly deliver, or cause to be delivered (including by causing the Company, following the Effective Time, holders of Shares shall not be required to take any action with respect deliver), additional funds to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and the Company Transfer Agent, automatically upon in any event within three Business Days after the Effective Time), be entitled to receivethe Company shall send, and Parent or shall cause the Paying Agent to pay send, to each holder of Shares at the Effective Time (other than Parent or any of its applicable Affiliates), a letter of transmittal and deliver as promptly as possible after instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, with the form and substance of such letter of transmittal and instructions to be reasonably agreed to by Parent and the Company and prepared prior to the Effective Time.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration to which payable for each such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Share represented by such Shares shall be made only to the Person in whose name Certificate or for each such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than three months or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the former Company Stockholders shall be the sole and exclusive property of the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a) and shall be paid upon as it directs. No investment of the transfer Consideration Fund shall relieve any Person from promptly making the payments required by this Article 2, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of Shares the applicable Company Stockholders in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. Consideration Fund.
(e) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months that have been converted into the right to receive the Merger Consideration one year after the Effective Time Time, to the extent permitted by Applicable Law, shall be returned to Parentthe party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for payment such party only as general creditors of such party with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and subject to any withholding of Taxes required by Applicable Law in respect of such Shares without any interest thereonaccordance with this Section 2.03(f). Notwithstanding the foregoing, Parent neither Parent, the Company nor any of their Affiliates shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares that have been converted into the right to receive the Merger Consideration two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Company, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 2.03(a), upon demand.
Appears in 2 contracts
Sources: Merger Agreement (ProFrac Holding Corp.), Merger Agreement (FTS International, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or bank, trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price or nationally recognized stockholder services provider or such other Person reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as paying agent (the “Paying Agent”) for the purpose holders of exchanging for Shares to receive the aggregate Merger Consideration to which the holders of such Shares shall become entitled pursuant to to, and in accordance with, Section 3.03(a)2.5. Promptly after the Effective Time (and but in any no event no later than the first three Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of Days following the Effective Time), Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash in an aggregate amount sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) 2.5 (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the aggregate Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at Promptly after the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentParent will send, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall or will cause the Paying Agent to pay send, to each holder of record of Shares as of the Effective Time, in each case whose Shares were converted into the right to receive the Merger Consideration, a letter of transmittal (which shall specify that the delivery shall be effected, and deliver risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Paying Agent) in such form as promptly as possible the Company and Parent may reasonably agree, for use in effecting delivery of Shares to the Paying Agent. Surrender of any Book-Entry Shares shall be effected in accordance with the Paying Agent’s customary procedures with respect to securities represented by book entry.
(c) Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Paying Agent of a Certificate or Book-Entry Share (or affidavits in lieu thereof in accordance with Section 3.2), together with a properly completed letter of transmittal, will be entitled to receive in exchange therefor the Merger Consideration for each Share formerly evidenced by such Certificates or Book-Entry Shares, and such Certificates and Book-Entry Shares shall then be canceled. No interest shall be paid or accrued on any Merger Consideration. Until so surrendered, each such Certificate or Book-Entry Share shall, after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable such Merger Consideration as contemplated by Section 3.03(a)2.5.
(ivd) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to the payment thereof that (i) the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and (ii) the Person requesting such payment delivery of the Merger Consideration shall have paid all either (A) pay to the Paying Agent any stock transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established (B) establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None of Parent, Purchaser or Merger Sub and the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv3.1(d) under any circumstance. Payment of the aggregate Merger Consideration, as applicable, with respect to Book-Entry Shares shall be made only to the Person in whose name such Book-Entry Shares are registered.
(ce) All Merger Consideration paid upon the transfer surrender of and in exchange for Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of SharesShares made on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Paying Agent, the Surviving Corporation or Parent, they shall be canceled and exchanged for the consideration provided for by, and in accordance with the procedures set forth in, Article II and this Article III.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon3.1(a) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time shall be returned to Parent, or transferred as otherwise directed by Parent, upon demand, and any such holder who has not exchanged such holder’s Shares for the Merger Consideration in accordance with this Section 3.04 3.1 prior to that time shall thereafter look only to Parent for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent none of Parent, Merger Sub, the Surviving Corporation or the Paying Agent shall not be liable to any holder of Shares for any amount paid Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares immediately prior to two years after the Effective Time, or such earlier time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority Entity shall become, to the extent permitted by Applicable applicable Law, the property of Parent Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(g) The Paying Agent shall invest any cash deposited by or on behalf of Parent pursuant to Section 3.1(a) as directed by Parent; provided, however, that (i) in no event shall any losses on such investments affect the cash payable to former holders of Shares pursuant to this Article III, and (ii) such investments shall be in (1) obligations of or guaranteed by the United States of America, (2) commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (3) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion, or (4) money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of acquisition or a combination of the foregoing and, in any such case, no such investment instrument shall have a maturity exceeding three months. Any interest and other income resulting from such investments shall be paid promptly to Parent. To the extent there are any losses with respect to any investments of the funds deposited with the Paying Agent, or the funds shall for any other reason, including the Dissenting Shares losing their status as such, not be sufficient for the Paying Agent to make prompt payment of the Merger Consideration, then upon demand by the Paying Agent, Parent shall promptly reimburse any such loss or otherwise provide additional funds (by wire transfer of immediately available funds) so as to ensure that the funds are at all times maintained at a level sufficient for the Paying Agent to make all payments contemplated by this Agreement to be made by the Paying Agent.
(h) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other similar Taxes and fees incurred by a holder of Shares in connection with the Merger, as well as the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the responsibility solely of such holder.
Appears in 2 contracts
Sources: Merger Agreement (American National Group Inc), Merger Agreement (Brookfield Asset Management Reinsurance Partners Ltd.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Merger Sub shall appoint a bank or trust company company, that has been approved in advance by the Company (which approval shall not be unreasonably withheld, delayed or conditioned), to act as disbursing agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Disbursing Agent”) for the purpose payment of exchanging for the Merger Consideration upon surrender of certificates representing the Shares shares of Company Common Stock. Prior to the Effective Time, the Company and Merger Sub will enter into a disbursing agent agreement with the Disbursing Agent and, at or essentially simultaneously with the Effective Time, Parent shall cause Merger Sub to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.03(a2.06(b) to and for the benefit of holders of shares of Company Common Stock (such amounts being hereinafter referred to as the “Exchange Fund”), with such cash to be held in trust by the Disbursing Agent, pursuant to the terms of the disbursing agent agreement referenced above, for the benefit of such holders of such shares. The Disbursing Agent shall invest the Exchange Fund as directed by Merger Sub; provided that any such investments shall be limited to (i) direct short-term obligations of the United States of America, or (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest; provided, further, that no loss thereon or thereof shall affect the amounts payable to holders of shares of Company Common Stock pursuant to Section 2.06(b). Promptly Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 2.06(b) shall be promptly paid to Parent. Merger Sub shall, and Parent shall cause Merger Sub to, promptly replenish the Exchange Fund to the extent of any investment losses.
(b) As soon as reasonably practicable after (and the Effective Time, but in any event no later than the first third (3rd) Business Day after) thereafter, the Acceptance Date, Parent Disbursing Agent shall deposit, or shall cause mail to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As each Person who was a record holder as of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders Time of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders shares of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Company Common Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.06(b), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the outstanding certificate(s) which 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 Disbursing Agent and, in the case of non-certificated shares represented by book-entry which immediately prior to the Effective Time represented shares of Company Common Stock (the “Book-Entry Shares”), delivery shall be effected only after complying with reasonable delivery procedures established by the Disbursing Agent and reasonably acceptable to the Company, and shall be in such form and have such other provisions as contemplated are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation or compliance with the reasonable procedures established by Section 3.03(a)the Disbursing Agent for delivery of Book-Entry Shares, together with such letter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, the holder of such Certificate or Book-Entry Shares shall be entitled to receive in exchange therefor a check in an amount equal to the product of (x) the number of shares of Company Common Stock represented by such holder’s properly surrendered Certificates or Book-Entry Shares multiplied by (y) the Merger Consideration, less any required withholding of Taxes, and such Certificate and Book-Entry Shares shall forthwith be cancelled. No interest will be paid or accrued on the cash payable upon the surrender of the Certificates or Book-Entry Shares.
(ivc) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 2.07, each Certificate or Book-Entry Share (other than Certificates or Book-Entry Shares representing shares of Company Common Stock owned by Parent, Merger Sub or any other wholly-owned Subsidiary of Parent, Purchaser shares of Company Common Stock held by the Company or any wholly-owned Subsidiary of the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration, without interest.
(ce) All At and after the Effective Time, there shall be no registration of transfers of shares of Company Common Stock which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock, except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the transfer surrender of Certificates or Book-Entry Shares in accordance with the terms hereof of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly shares of Company Common Stock previously represented by such Certificates or Book-Entry Shares. After If, after the Effective Time, there Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, such Certificates or Book-Entry Shares shall be no further registration cancelled and exchanged for cash as provided in this Article II. At the close of transfers business on the day of Sharesthe Effective Time, the stock ledger of the Company shall be closed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(apay for shares of Company Common Stock for which appraisal rights have been perfected shall be returned to Parent upon demand. At any time more than six (6) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates and Book-Entry Shares (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time former holders of shares of Company Common Stock shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingthis Agreement, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or similar lawsBook-Entry Shares held by them. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity, shall, to the extent permitted by Applicable applicable Law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, none of Parent, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book-Entry Share for any Merger Consideration delivered in respect of such Certificate or Book-Entry Share to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 2 contracts
Sources: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Surrender and Payment. (a) Prior At or prior to the Acceptance DateClosing, Parent shall appoint a United States bank or trust company to act as agent or other independent financial institution in the United States (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price that is reasonably acceptable to the holders of Shares that become entitled Company to receive the aggregate Offer Price pursuant to Section 2.01(d) and act, among other things, as exchange agent (the “Paying Agent”) for the purpose of exchanging for the Merger and to deliver the Merger Consideration to former stockholders of the Shares pursuant to Section 3.03(a)Company. The Company and Parent shall enter into an Exchange Agent agreement with the Exchange Agent, which agreement shall set forth the duties, responsibilities and obligations of the Exchange Agent consistent with the terms of this Agreement. Promptly after (and in any event no later than the first Business Day after) Effective Time on the Acceptance Closing Date, Parent shall deposit, deposit (or shall cause to be deposited, ) with the Depository Agent cash sufficient to make Exchange Agent, for the payment account and benefit of the former holders of Company Common Stock, the aggregate Offer Price payable number of shares of Parent Common Stock issuable pursuant to Section 2.01(d). As of the Effective Timethis Article IV, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant required to Section 3.03(a) be paid by the Exchange Agent in accordance with this Agreement (together with the amount deposited pursuant Parent Common Stock shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Consideration Fund”). The Payment In addition, Parent shall make available as necessary cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 4.1(d). In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price Merger Consideration, Parent shall promptly deliver, or cause to be delivered, additional shares of Parent Common Stock to the Exchange Agent in an amount that is equal to the Offer and the Merger Consideration deficiency required to holders of Shares in the Mergermake such payments.
(b) Except as provided Promptly after the Effective Time (and in this Section 3.04(b), at any event within five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 4.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and risk of loss and title to the Certificates or Book Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Exchange Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as reasonably agreed to by the Company and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Exchange Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Exchange Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to the provisions of this Article IV, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares shall not be required to take or Certificates in connection with, or accrued on, the Merger Consideration, any action cash paid in lieu of the issuance of any fractional shares or dividends or distributions payable with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Shares in exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment such exchange that the Person requesting such payment exchange shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of stockholder owning the Shares Book Entry Share transferred or Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger The cash in the Consideration Fund shall be invested by the Exchange Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Exchange Agent from promptly making the payments required by this Article IV, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Exchange Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(d) At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Exchange Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article IV, except as otherwise provided by Law.
(de) Any portion of the Merger Consideration made available to Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent, upon demand, and any such holder Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior Article IV with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the their claim for Merger Consideration in respect of such Shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Exchange Agent nor any party hereto shall not be liable to any holder Person in respect of Shares for any amount paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by Applicable applicable Law, become the property of Parent free or the Surviving Corporation, and clear any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article IV with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any claims Certificate shall have been lost, stolen or interest destroyed, upon the making of any an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Exchange Agent) by the Person previously claiming such certificate to be lost, stolen or destroyed, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled theretoin respect of such Certificate pursuant to this Article IV.
Appears in 2 contracts
Sources: Merger Agreement (PARETEUM Corp), Merger Agreement (Ipass Inc)
Surrender and Payment. (a) Prior to the Acceptance Closing Date, Parent Parent, at its sole expense, shall appoint a bank Computershare Trust Company N.A. or trust company such other exchange agent as reasonably acceptable to the Company and Parent (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after for: (and in any event no later than the first Business Day afteri) the Acceptance DateCertificates, or (ii) Book-Entry Shares. At the Closing, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make Exchange Agent, for the payment benefit of the aggregate Offer Price payable pursuant to Section 2.01(d). As holders of the Effective TimeCommon Shares, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”)) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the Merger Consideration that is payable in respect of all of the Common Shares represented by the Certificates and the Book-Entry Shares, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly (and in any case, within five (5) Business Days) to deposit, or cause to be deposited, in trust additional cash with the Exchange Agent sufficient to make all remaining payments required to be made under this Section 3.2 and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. Any net profit resulting from, or interest or income produced by, investments of the Payment Fund by the Exchange Agent shall be payable to the Surviving Corporation or Parent, and any amounts in excess of the amounts payable pursuant to Section 3.1 shall be promptly returned to the Surviving Corporation or Parent, in each case as directed by Parent. The Surviving Corporation shall pay all charges and expenses of the Exchange Agent incurred in connection with the exchange of Common Shares for the Merger Consideration. The Payment Fund shall not be used for any purpose other than to pay the Offer Price Merger Consideration that is payable in respect of all of the Offer Common Shares represented by the Certificates and the Merger Consideration to holders of Shares Book-Entry Shares. Promptly after the Effective Time (and in the Merger.
any case, within five (b5) Except as provided in this Section 3.04(bBusiness Days), the Surviving Corporation shall cause the Exchange Agent to send to each record holder of Common Shares at the Effective Time, holders a letter of transmittal in a customary form to be mutually agreed to by the Company and Parent (the “Letter of Transmittal”) and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares shall not be required to take any action with respect to the Exchange Agent) for use in effecting the surrender of such Certificates or transfer of the Book-Entry Shares to the Exchange Agent in exchange for payment of their Shares for the Merger Consideration.
(ib) Any Each holder of Common Shares held in direct registry form through that have been converted into the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (right to receive the “Company Transfer Agent”) Merger Consideration shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective TimeSection 3.2(f), be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, receive the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment in respect of the applicable Merger Consideration with respect to such Common Shares shall be made only represented by a Certificate or Book-Entry Share upon (i) surrender to the Person in whose name Exchange Agent of a Certificate, together with a duly completed and validly executed Letter of Transmittal and such Shares are registered.
other documents as may reasonably be requested by the Exchange Agent, or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request in the case of Book-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofEntry Shares. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after After the Effective Time to and until so surrendered or transferred, each such Certificate or Book-Entry Share shall represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Book-Entry Share or establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After The stock transfer books of the Company shall be closed immediately upon the Effective Time, Time and thereafter there shall be no further registration of transfers of SharesCompany Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares 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 III.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and in respect of any interest or other income earned thereon) that remains unclaimed by the holders of Dissenting Shares twelve months after the Effective Time shall be returned to Parent, upon demand.
(f) Any portion of the Payment Fund which remains undistributed to the holders of Company Common Stock for six (6) months after the Effective Time shall be delivered to the Surviving Corporation upon demand, and any such holder holders of Company Common Stock who has have not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Article III shall (subject to the remainder of this Section 3.04 prior to that time shall 3.2(f)) thereafter look only to Parent the Surviving Corporation for payment of the Merger Consideration in respect of such Shares Consideration, without any interest thereonthereon but subject to any applicable withholdings. Notwithstanding the foregoing, Parent If any Certificates or Book-Entry Shares shall not be liable have been exchanged prior to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat two years after the Effective Time (or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when earlier date on which the amounts related Merger Consideration would otherwise escheat to or become the property of any Governmental Authority shall becomeAuthority) any such Merger Consideration in respect thereof shall, to the extent permitted by Applicable Law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto. None of Parent, the Company or the Surviving Corporation shall be liable to any holder of Company Common Stock for any cash from the Payment Fund delivered to a public official pursuant to any abandoned property, escheat or similar Applicable Law.
(g) No dividends or other distributions with respect to capital stock of the Surviving Corporation with a record date on or after the Effective Time shall be paid to the holder of any unsurrendered Certificates.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Electro Rent Corp), Merger Agreement (Electro Rent Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares that immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of shares of Company Common Stock for the Merger Consideration Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries Entry Shares. Until so surrendered or transferred, as the case may be, and subject to ensure that the Paying Agent will transmit to DTC terms set forth in Section 3.03, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this ARTICLE III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this ARTICLE III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto. If any Certificates or Book-Entry Shares are not delivered, surrendered or transferred, as applicable, in accordance with this Section 3.02 prior to the date on which any amounts payable under this ARTICLE III would otherwise escheat to or become the property of any Governmental Entity, 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.
(f) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as paying agent (in the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Merger (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Class A Common Stock outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and the Effective Time, in any event no later each case, other than the first Business Day after) the Acceptance Date, Parent shall deposit, Canceled Shares and except for any Dissenting Shares. At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit or shall cause to be deposited, deposited (i) with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant required to Section 3.03(abe paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) (together with the Company, cash in an amount deposited pursuant sufficient to pay the immediately preceding sentence, aggregate RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Payment Compensatory Award Fund”). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.02 or Section 3.06, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Payment Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.02(a) out of the Exchange Fund. Parent shall cause the Surviving Corporation or the applicable Subsidiary to pay the RSU Consideration contemplated to be paid pursuant to Section 3.06 out of the Compensatory Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will cause the Paying Agent to send to each holder of Shares shall not be required to take any action with respect record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Class A Common Stock (other than the Canceled Shares and except for any Dissenting Shares) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Class A Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, in exchange of their Shares for the Merger ConsiderationConsideration in such form as Parent and the Company may reasonably agree.
(ic) Any Upon the surrender of a Certificate (or affidavit of loss in lieu thereof) or a Book-Entry Share, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate or Book-Entry Share shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within two (2) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates or Book-Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment In the event of a transfer of ownership of Class A Common Stock that is not registered in the transfer records of the applicable Company, payment of the appropriate amount of Merger Consideration with respect to such Shares shall may be made only to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered is registered if such Shares are registeredCertificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share shall be properly transferred. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.
(iid) With respect Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Agent and the Depository Trust Company (“DTC, DTC’s nominees and such other necessary third-party intermediaries ”) to ensure that that, to the extent possible, (i) if the Closing occurs at or prior to 2:00 p.m. (Eastern time) on the Closing Date, the Paying Agent will transmit to DTC or its nominees as promptly as practicable after on the Effective Time, upon surrender Closing Date an amount in cash in immediately available funds equal to the number of Shares shares of Class A Common Stock held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed nominee immediately prior to the Effective Time multiplied by Parentthe Merger Consideration (such amount, the Company“DTC Payment”), and (ii) if the Closing occurs after 2:00 p.m. (Eastern time) on the Closing Date, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, Agent will transmit to DTC or its nominee on the Merger Consideration first (1st) Business Day after the Closing Date an amount in cash in immediately available funds equal to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a)DTC Payment.
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(ive) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate or Book-Entry Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all transfer and other similar pay, or cause to be paid, any Transfer Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or Book-Entry Share or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cf) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Class A Common Stock. From and after the Effective Time, the holders of Certificates or Book-Entry Shares representing shares of Class A Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Class A Common Stock, except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Paying Agent, the Surviving Corporation or Parent, they shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
(dg) Any portion of the Merger Consideration made available to Exchange Fund (including any interest and other income received by the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereonin respect of all such funds) that remains unclaimed by the holders of Shares twelve months shares of Class A Common Stock after the date which is one (1) year following the Effective Time shall be returned to Parent (or its designee as directed by ▇▇▇▇▇▇) upon Parent, upon ’s demand, and any such . Any holder of shares of Class A Common Stock who has not exchanged such his, her or its Certificates or Book-Entry Shares for the Merger Consideration in accordance with this Section 3.04 3.03 prior to that time shall thereafter look only to Parent the Surviving Corporation for payment delivery of the Merger Consideration in respect of such holder’s Certificates or Book-Entry Shares. Parent shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of Certificates or Book-Entry Shares without any interest thereonfor the Merger Consideration. Notwithstanding the foregoing, Parent none of Parent, the Company or the Surviving Corporation, nor any employee, officer, partner, director, manager, agent or Affiliate of the foregoing, shall not be liable to any Person, including any holder of Shares shares of Class A Common Stock or Company Compensatory Awards, including for any amount paid Merger Consideration or PSU/RSU Consideration that is required to be delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts portion of the Exchange Fund or Compensatory Award Fund remaining unclaimed by holders as of Shares a date that is immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomewill, to the extent permitted by Applicable Law, become the property of Parent Parent, free and clear of all or any claims or interest of any Person previously entitled thereto.
(h) The Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses, Parent shall promptly provide additional funds to the Paying Agent to ensure the Exchange Fund is at a level sufficient for the Paying Agent to pay the aggregate remaining cash payments to be paid by the Paying Agent as contemplated by this Article III, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to Parent or its designee as directed by ▇▇▇▇▇▇.
(i) All Merger Consideration and PSU/RSU Consideration issued or paid upon conversion of the Class A Common Stock (including, for the avoidance of doubt, Class A Common Stock issued upon the Class B Common Stock Conversion), the Company PSU Awards or the Company RSU Awards, as applicable, in accordance with the terms of this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Class A Common Stock, Company PSU Awards or Company RSU Awards, as the case may be.
Appears in 2 contracts
Sources: Merger Agreement (Altus Power, Inc.), Merger Agreement (Altus Power, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act Equiniti Trust Company, LLC (formerly known as American Stock Transfer and Trust Company) as the paying agent (or such other nationally recognized paying agent designated by Parent and approved in writing by the “Depository Agent”Company) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) to act as agent for the purpose of exchanging for Company’s stockholders who shall become entitled to receive the Per Share Merger Consideration the Shares pursuant Consideration. At or prior to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Per Share Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the aggregate Per Share Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the shortfall in such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Paying Agent as directed by ▇▇▇▇▇▇; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Paying Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of twelve (12) months after the Effective Time or the full payment of the aggregate Per Share Merger Consideration. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Paying Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration to holders in respect of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at such shares. Promptly after the Effective Time, holders of Shares shall not be required to take and in any action with respect to the exchange of their Shares for the Merger Consideration.
event no later than three (i3) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon Business Days after the Effective Time, be entitled to receiveParent shall send, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of shares of Company Common Stock immediately prior to the Effective Time, Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which such holder shall become entitled pursuant Section 3.03(a)specify that the delivery shall be effected, and the Shares so exchanged risk of loss and title shall be forthwith canceled. Payment pass, only upon proper delivery or transfer of the applicable Merger Consideration with respect Certificates (or affidavits of loss in lieu of the Certificates pursuant to such Shares shall be made only Section 2.09) to the Person Paying Agent for use in whose name such Shares are registeredexchange).
(iib) With Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in respect of each share of Company Common Stock represented by a Certificate, promptly, upon (i) surrender to Shares heldthe Paying Agent of a Certificate, directly or indirectly, through the Depository Trust Company (“DTC”), Parent together with a duly completed and the Company shall cooperate to establish procedures with validly executed letter of transmittal and such other documents as may reasonably be requested by the Paying Agent, DTCor (ii) in the case of a book-entry transfer of shares of Company Common Stock, DTCreceipt of a customary “agent’s nominees and such other necessary third-party intermediaries to ensure that message” by the Paying Agent will transmit to DTC (or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures evidence, if any, of transfer as agreed the Paying Agent may reasonably request), and, in each case, delivery to the Paying Agent of such other documents as may reasonably be requested by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Per Share Merger Consideration. No interest shall be paid or accrued for the applicable Merger Consideration as contemplated by Section 3.03(a)benefit of any holder of Company Common Stock on any amount payable upon the surrender or transfer of any Certificate.
(ivc) If any portion of the payment of any Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(cd) All Per Share Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to Paying Agent or the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock on the date that is twelve (12) months after the Effective Time Closing Date shall be returned delivered to ParentParent or the Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent the Surviving Corporation as general creditors thereof for payment of the Per Share Merger Consideration in respect of such Shares Consideration, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of Shares immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable applicable Law, the property of Parent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto. Notwithstanding anything in this Agreement to the contrary, none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall be liable to any former holder of Company Common Stock or any Company Equity Awards for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
Appears in 2 contracts
Sources: Merger Agreement (Chuy's Holdings, Inc.), Merger Agreement (Darden Restaurants Inc)
Surrender and Payment. (a) Prior At or prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause make available to be deposited, the Person authorized to act as exchange agent in connection with the Paying Agent cash sufficient transactions contemplated by this Agreement, which Person shall be selected by Parent and be reasonably acceptable to pay the Company (the “Exchange Agent”), pursuant to any agreement reasonably acceptable to Parent and the Company entered into prior to the Effective Time, immediately available funds equal to the aggregate Merger Consideration payable pursuant (such cash, collectively being referred to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, as the “Payment Exchange Fund”). The Payment Fund Such cash funds may be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall not be used for any purpose other than to pay the Offer Price in the Offer and affect the Merger Consideration or other amounts payable hereunder, (ii) if, for any reason (including if Dissenting Shares cease to holders of Shares be Dissenting Shares), the cash in the MergerExchange Fund becomes insufficient to make the payments contemplated by this Article 2, then Parent shall promptly provide additional cash to the Exchange Agent for the benefit of the former stockholders of the Company sufficient to make the payments contemplated by this Article 2 and (iii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time Promptly after the Effective Time (but not later than three (3) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent) and shall be in such form and have such other or different provisions as Parent shall reasonably designate for use in such exchange. Upon proper surrender of the Certificates for exchange (or affidavits of loss in lieu thereof) and cancellation or transfer of the Uncertificated Shares to the Exchange Agent, together with such properly completed letter of transmittal, the holder of such Certificates or Uncertificated Shares shall be entitled to receive in exchange therefor a check representing an amount equal to the product of (i) the number of shares of Company Stock represented by such Certificate or Uncertificated Shares multiplied by (ii) the Merger Consideration (rounded up to the nearest whole cent). Until so surrendered, each Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. The Parent, the Company and the Exchange Agent may agree on transfer procedures in addition to or different from the procedures set forth above in order to effect the transfer and conversion of the Company Stock in accordance with this Agreement.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred, accompanied by all documents reasonably required to evidence and effect such transfer, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All The Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof of this Article 2 upon conversion of any shares of the Company Stock shall be deemed to have been delivered and paid in full satisfaction of all rights pertaining to such shares of the Company Stock. From and after the Effective Time, subject to Delaware Law in the case of Dissenting Shares, all holders of Certificates and Uncertificated Shares formerly shall cease to have any rights as stockholders of the Company other than the right to receive the Merger Consideration into which the shares represented by such SharesCertificates or Uncertificated Shares have been converted pursuant to this Agreement upon the surrender of such Certificate or Uncertificated Share in accordance with this Article 2. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the former holders of Shares twelve months after shares of Company Stock as of the one year anniversary of the Effective Time shall be returned to Parent, upon demand, and any such holder . Any former stockholders of the Company who has have not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior to that time Article 2 shall thereafter look only to Parent (subject to abandoned property, escheat or other similar Applicable Laws), as general creditors thereof, for payment of the Merger Consideration in respect of each share of Company Stock as such Shares stockholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, Merger Subsidiary, the Company, the Exchange Agent or any other person shall not be liable to any former holder of Shares shares of Company Stock for any amount paid delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Notwithstanding any other provision of Shares this Agreement, any portion of the Merger Consideration to be paid in accordance with this Article 2 that remains undistributed to any former holder of Company Stock, as of immediately prior to such time when the amounts date on which the Merger Consideration that would otherwise escheat to or become the property of any Governmental Authority shall becomeAuthority, shall, to the extent permitted by Applicable Law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Amc Entertainment Inc), Merger Agreement (Carmike Cinemas Inc)
Surrender and Payment. (a) Prior to the Acceptance Mailing Date, Parent CME Holdings shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent CBOT Holdings (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging Certificates representing shares of CBOT Holdings Class A Common Stock and non-certificated shares represented by book entry (“Book-Entry Shares”) for the Merger Consideration the Shares pursuant to Section 3.03(a)Consideration. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositbut in no event more than three (3) Business Days thereafter, the Surviving Entity will send, or will cause the Exchange Agent to send, to each holder of record of shares of CBOT Holdings Class A Common Stock as of the Effective Time (other than any holder which has previously and properly surrendered all of its Certificate(s) to the Exchange Agent in accordance with Section 1.10 ), a letter of transmittal for use in such exchange (which shall cause specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to be depositedthe Exchange Agent) in such form as CBOT Holdings and CME Holdings may reasonably agree, with for use in effecting delivery of shares of CBOT Holdings Class A Common Stock to the Paying Exchange Agent. As promptly as practicable after the Election Date (and in no event later than three (3) Business Days after the Election Date), the Exchange Agent cash sufficient to pay shall determine the aggregate Actual Cash Amount and the allocation of Merger Consideration payable pursuant to Section 3.03(a) and shall notify CME Holdings of such determination (together with the amount deposited pursuant to the immediately preceding sentencedate of such determination, the “Payment FundDetermination Date”). The Payment Fund At the Effective Time, CME Holdings shall deposit with the Exchange Agent (i) the number of shares of CME Holdings Class A Common Stock (including fractional shares) to be delivered as Stock Consideration in respect of the No Election Shares and the shares of CBOT Holdings Class A Common Stock for which an election to receive stock consideration is properly made and not revoked or lost pursuant to this Section 2.1, (ii) the number of shares of CME Holdings Class A Common Stock (including fractional shares) as shall be used necessary to deliver the Stock Consideration in respect of the shares of CBOT Holdings Class A Common Stock for any purpose other than which an election to receive the Stock Consideration is properly made and not revoked or lost pursuant to this Section 2.1, and (iii) the Available Cash Amount. CME Holdings shall also make sufficient funds available to the Exchange Agent from time to time as needed to pay the Offer Price cash in the Offer and the Merger Consideration respect of dividends or other distributions contemplated by Section 2.1(f). Exchange of any Book-Entry Shares shall be effected in accordance with CME Holdings’ customary procedures with respect to holders of Shares in the Mergersecurities represented by book entry.
(b) Except Each holder of shares of CBOT Holdings Class A Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, will be entitled to receive (A) one or more certificates of CME Holdings Class A Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the number of shares of CME Holdings Class A Common Stock, if any, that such holder has the right to receive pursuant to Section 1.9 and (B) a check in the amount equal to the cash portion of the Merger Consideration, if any, that such holder has the right to receive pursuant to Section 1.9 and this Article II, including dividends and other distributions payable pursuant to Section 2.1(f). The Merger Consideration shall be paid as provided promptly as practicable after receipt by the Exchange Agent of the Certificate and letter of transmittal in this Section 3.04(b)accordance with the foregoing. No interest shall be paid or accrued on any Merger Consideration or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, at each such Certificate shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to registered in the name of a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment delivery of the Merger Consideration shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of such registration in the payment name of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of CBOT Holdings Class A Common Stock. If, after the Effective Time, Certificates are presented to the Exchange Agent or the Surviving Entity, they shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.1(a) that remains unclaimed by the holders of Shares twelve months shares of CBOT Holdings Class A Common Stock one year after the Effective Time shall be returned to Parentthe Surviving Entity, upon demand, and any such holder who has not exchanged such Shares his or her shares of CBOT Holdings Class A Common Stock for the Merger Consideration in accordance with this Section 3.04 2.1 prior to that time shall thereafter look only to Parent the Surviving Entity for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares. Notwithstanding the foregoing, Parent the Surviving Entity shall not be liable to any holder of Shares shares for any amount paid Merger Consideration properly delivered to a public official pursuant to applicable abandoned property, escheat or similar property laws. Any amounts Merger Consideration remaining unclaimed by holders of Shares shares of CBOT Holdings Class A Common Stock immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEntity shall, to the extent permitted by Applicable applicable Law, become the property of Parent the Surviving Entity free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to shares of CME Holdings Class A Common Stock issued in the Merger shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered as provided in this Section 2.1. Following such surrender, there shall be paid, without interest, to the record holder of the shares of CME Holdings Class A Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such shares of CME Holdings Class A Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends or other distributions payable with respect to such shares of CME Holdings Class A Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of shares of CME Holdings Class A Common Stock, all shares of CME Holdings Class A Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Chicago Mercantile Exchange Holdings Inc), Merger Agreement (Cbot Holdings Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a Citibank, N.A. or any other bank or trust company which shall be approved by the Company (such approval not to act as agent be unreasonably withheld, conditioned or delayed) (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) non-certificated Shares pursuant to Section 3.03(arepresented by book entry (the “Uncertificated Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause Prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Exchange Agent, for the benefit of holders of Shares and ADSs, a cash amount in immediately available funds sufficient for the Exchange Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(amake payments under Sections 2.02(a) and 2.02(b) (together with such aggregate cash amount being hereinafter referred to as the amount deposited “Exchange Fund”), in respect of the Certificates and the Uncertificated Shares. If any Dissenting Shareholder withdraws or loses its dissenter’s rights pursuant to the immediately preceding sentenceSection 238 of the Cayman Companies Law with respect to any Dissenting Shares, the “Payment Fund”). The Payment Fund such Shares shall not be used subject to Section 2.09 and Parent shall promptly deposit, or cause to be deposited, into the Exchange Fund, a cash amount in immediately available funds equal to the product of the number of such Shares for which such shareholder has lost its dissenter’s rights pursuant to the Cayman Companies Law, multiplied by the Per Share Merger Consideration. If for any purpose other than to pay reason following the Offer Price Effective Time the cash in the Offer and Exchange Fund is insufficient to fully satisfy all of the Merger Consideration payment obligations to holders of Shares be made in cash by the Exchange Agent hereunder, Parent or the Surviving Company shall promptly deposit or cause to be deposited cash in immediately available funds into the Exchange Fund in an amount which is equal to the deficiency in the Merger.
amount of cash required to fully satisfy such cash payment obligations. Promptly after the Effective Time (band in any event within three (3) Except as provided in this Section 3.04(bBusiness Days), Parent shall cause the Exchange Agent to send to each Person who was, at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any a registered holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Per Share Merger Consideration as contemplated by Section 3.03(a).
pursuant to Section 2.02(a) a letter of transmittal and instructions (iv) If which shall specify that the payment delivery shall be effected, and risk of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books loss and title shall pass, only upon proper delivery of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all Certificates or transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Uncertificated Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that Exchange Agent) for use in such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceexchange.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Shanda Interactive Entertainment LTD), Merger Agreement (Ku6 Media Co., LTD)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration Surviving Corporation shall cause to which such holder shall become entitled pursuant Section 3.03(a)be mailed to each record holder, and the Shares so exchanged shall be forthwith canceled. Payment as of the applicable Merger Consideration Effective Time, of certificates representing outstanding shares of Company Common Stock (“Company Certificates”) or shares of Company Common Stock represented by book-entry (“Company Book-Entry Shares”) (other than such holders who properly made a Cash Election, Stock Election or Combination Election with respect to such Company Certificates or Company Book-Entry Shares in accordance with Section 3.1 and other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be made only effected, and risk of loss and title to the Person in whose name such Shares are registered.
(ii) With respect to Shares heldCompany Certificates shall pass, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and only upon proper delivery of the Company shall cooperate Certificates to establish the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures with set forth in the Paying Agentletter of transmittal) and instructions for use in effecting the surrender of the Company Certificates or, DTCin the case of Company Book-Entry Shares, DTC’s nominees and the surrender of such other necessary third-party intermediaries to ensure that shares for payment of the Paying Agent will transmit to DTC or its nominees as promptly as practicable after Merger Consideration therefor. After the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures this Section 3.4(a) or in connection with a Form of Election delivered pursuant to Section 3.1(d), to the Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such letter of transmittal or a Form of Election pursuant to Section 3.1(d), duly completed and validly executed in accordance with the instructions thereto, and such other procedures documents as agreed by Parentmay be required pursuant to such instructions, the Company, Exchange Agent shall promptly deliver to the Paying Agent, DTC, DTC’s nominees and holder of such other necessary thirdCompany Certificate or Company Book-party intermediariesEntry Shares in exchange therefor, the Merger Consideration to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company 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. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be issued in a name other than that in which the beneficial owners Company Certificate surrendered for exchange is registered, it shall be a condition of such Shares heldexchange that the Company Certificate so surrendered shall be properly endorsed, directly with signature guaranteed, or indirectly through DTCotherwise in proper form for transfer, and that the person requesting such exchange shall become entitled pursuant pay to Section 3.03(a).
(iii) No interest shall accrue Company or be paid on its transfer agent any transfer or other taxes required by reason of the issuance of the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a)3.1.
(ivb) If No dividends or other distributions with respect to shares of Acquiror Common Stock with a record date after the payment Effective Time shall be paid to the holder of any Merger Consideration is unsurrendered Company Certificate or Company Book-Entry Share with respect to the shares of Acquiror Common Stock to be made to a Person other than the Person received in whose name the surrendered Shares is registered on the stock transfer books respect thereof and no cash payment in lieu of the Company, it fractional shares shall be a condition paid to any such holder pursuant to Section 3.4(d), in each case until the surrender of payment that such Company Certificate or Company Book-Entry Share in accordance with this Article 3. Subject to the Person requesting such payment shall have paid all transfer and effect of applicable laws (including but not limited to applicable abandoned property, escheat or other similar Taxes required by reason laws), following surrender of any such Company Certificate or Company Book-Entry Share, there shall be paid to the payment of the Merger Consideration to a Person other than the registered holder of such Company Certificate or Company Book-Entry Share, without interest, (i) at the Shares surrenderedtime of such surrender, the amount of any cash payable in lieu of fractional shares of Acquiror Common Stock to which such holder is entitled pursuant to Section 3.4(d) and any dividends or shall have established other distributions with a record date after the Effective Time theretofore paid with respect to whole shares of Acquiror Common Stock to which such holder is entitled pursuant to this Agreement, and (ii) at the satisfaction appropriate payment date, any dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such whole shares of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceAcquiror Common Stock.
(c) All The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 (including any cash paid pursuant to Section 3.4(d)) shall be deemed to have been paid issued (and paid) in full satisfaction of all rights pertaining to the Shares formerly represented shares of Company Common Stock so exchanged.
(i) No new Company Certificates or scrip representing fractional shares of Acquiror Common Stock shall be issued in connection with the Merger and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Company after the Merger, and (ii) notwithstanding any other provision of this Agreement, each holder of shares of Company Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Acquiror Common Stock (after taking into account all shares of Company Common Stock delivered by such Shares. After holder) shall receive, in lieu thereof, a cash payment (without interest rounded up to the nearest whole cent) determined by multiplying the fractional share interest to which such holder would otherwise be entitled by the closing price for a share of Acquiror Common Stock as reported on the NYSE Composite Transactions Tape on the trading day immediately preceding the date on which the Effective Time occurs.
(e) At any time following the date which is nine months after the Effective Time, there Acquiror shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any Acquiror Common Stock or funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Acquiror and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Acquiror, Surviving Corporation, any subsidiary or Affiliate of Acquiror or Surviving Corporation or the Exchange Agent shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any former holder of Shares Company Common Stock for any amount paid cash, shares of Acquiror Common Stock (or dividends or distributions in respect thereof) or cash in lieu of fractional shares of Acquiror Common Stock delivered to a public official officials pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(f) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 2 contracts
Sources: Merger Agreement (Titan Corp), Merger Agreement (Lockheed Martin Corp)
Surrender and Payment. (a) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as an agent (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) Company for the purpose of exchanging certificates which immediately prior to the Effective Time evidenced shares of Company Common Stock (the “Certificates”) for the applicable Merger Consideration the Shares pursuant to Section 3.03(a)an exchange agent agreement in form and substance reasonably satisfactory to Company. Promptly after At or as promptly as practicable (and and, in any event no later than the first Business Day afterevent, within two (2) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of business days) after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentenceExchange Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to be exchanged or paid in accordance with this Article II, and Parent shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of fractional shares pursuant to Section 2.3 and any dividends or distributions to which holders of Shares shares of Company Common Stock may be entitled pursuant to Section 2.2(c). The Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal for use in such exchange (which shall be in form and substance reasonably satisfactory to Parent and Company and shall specify that the Mergerdelivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and (ii) instructions to effect the surrender of the Certificates in exchange for the applicable Merger Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c).
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into a right to receive the applicable Merger Consideration, cash payable in this respect thereof in lieu of any fractional shares pursuant to Section 3.04(b2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c), at upon surrender to the Exchange Agent of a Certificate or Certificates, together with a properly completed letter of transmittal covering such shares and such other documents as the Exchange Agent may reasonably require, shall be entitled to receive the applicable Merger Consideration payable in respect of such shares of Company Common Stock. The holder of such Certificate, upon its delivery thereof to the Exchange Agent, shall also receive any dividends or other distributions to which such holder is entitled pursuant to Section 2.2(c) and cash payable in respect of any fractional shares pursuant to Section 2.3. Certificates surrendered shall forthwith be canceled as of the Effective Time. Until so surrendered, each such Certificate, following the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares represent for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration as contemplated by Consideration, cash payable in respect thereof in lieu of any fractional shares pursuant to Section 3.03(a2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c). No interest shall be paid or accrued for the benefit of holders of the Certificates on cash amounts payable upon the surrender of such Certificates pursuant to this Section 2.2.
(ivc) Whenever a dividend or other distribution is declared or made after the date hereof with respect to Parent Common Stock with a record date after the Effective Time, such declaration shall include a dividend or other distribution in respect of all shares of Parent Common Stock issuable pursuant to this Agreement. No dividends or other distributions declared or made after the Effective Time with respect to Parent Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the Parent Common Stock such holder is entitled to receive until the holder of such Certificate shall surrender such Certificate in accordance with the provisions of this Section 2.2. Subject to applicable law, following surrender of any such Certificate, there shall be paid to the record holder of the certificates representing Parent Common Stock issued in exchange therefor, without interest, 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 Parent Common Stock.
(d) If a transfer of ownership of shares of Company Common Stock is not registered in the payment stock transfer books or ledger of Company, or if any certificate for the applicable Merger Consideration is to be made to issued in a Person name other than that in which the Person Certificate surrendered in whose name the surrendered Shares exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to the issuance thereof that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment exchange shall have paid all to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the payment issuance of the Merger Consideration to a Person certificate for Parent Common Stock in any name other than that of the registered holder of the Shares surrenderedsuch shares of Company Common Stock, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicablepayable. None For purposes of Parentthis Agreement, Purchaser “Person” means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a government or political subdivision or any circumstanceagency or instrumentality thereof.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Traffix Inc), Merger Agreement (New Motion, Inc.)
Surrender and Payment. (a) 1.3.1. Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositappoint an agent reasonably acceptable to the Company as exchange agent (the "Exchange Agent") in connection with the Merger for the purpose of exchanging Common Certificates for Parent ADRs or for certificates representing Parent Ordinary Shares ("Parent Certificates"), as applicable, and cash in lieu of fractional Parent Depositary Shares and Parent Ordinary Shares, as applicable, in accordance with Section 1.5, and exchanging Preferred Certificates for the Preferred Consideration. The Company shall act as agent for each holder of record of Company Common Shares as of the Effective Time that does not elect to receive Parent Ordinary Shares in lieu of Parent Depositary Shares (each, a "Non-Electing Record Holder") and shall enter into an agreement (the "Nominee Agreement") with Parent and the Exchange Agent. Parent shall issue the Parent Ordinary Shares that will represent the Parent Depositary Shares issuable pursuant to the Merger in registered form to the Exchange Agent (or its nominee), as nominee and agent for and on behalf of the Non-Electing Record Holders (the "Nominee") for the issuance of Parent Depositary Shares in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent and no election has been made to receive Parent Ordinary Shares, subject to the terms and conditions of this Agreement and the Nominee Agreement. The Parent Ordinary Shares in registered form held by the Nominee of the Non-Electing Record Holders shall be deposited by the Nominee or on its behalf with the Depositary (or as it may direct) as and when required for the delivery of Parent Depositary Shares in accordance with this Article I. To the extent required, the Exchange Agent will requisition from the Depositary, from time to time, that number of Parent Depositary Shares, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares of Non-Electing Record Holders for which Common Certificates have been properly delivered to the Exchange Agent. Parent shall deposit with the Exchange Agent, from time to time that number of Parent Certificates, in any denominations as the Exchange Agent shall specify, as are issuable in respect of Company Common Shares for which Common Certificates have been properly delivered to the Exchange Agent, and an election has been made to receive Parent Ordinary Shares. Parent shall also from time to time deposit or cause to be deposited, deposited with the Paying Exchange Agent cash U.S. dollars in an amount sufficient to pay provide the aggregate Merger Consideration payable Exchange Agent with the cash to fund payments to be made pursuant to Section 3.03(a) (together 1.3.6. The Company shall maintain, pursuant to Section 1.9, sufficient funds in an escrow account with the amount deposited pursuant Exchange Agent to provide the immediately preceding sentence, Exchange Agent with the “Payment Fund”). The Payment Fund shall not be used for any purpose other than cash to pay fund payments in respect of the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Preferred Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible 1.3.2. Promptly after the Effective Time, the Merger Consideration Surviving Corporation shall send, or shall cause the Exchange Agent to which such send, to each holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of record as of the applicable Merger Consideration Effective Time of Company Common Shares and/or Company Money Market Preferred Shares (other than holders of shares that constitute Excluded Shares) a letter of transmittal (which shall with respect to such holders of Company Common Shares shall be made only also serve as a form of election), in a form upon which the Company and Parent may reasonably agree, for use in effecting delivery of Certificates to the Person Exchange Agent. This letter of transmittal shall provide each holder of record of Company Common Shares with the option to elect to receive Parent Ordinary Shares in whose name such lieu of Parent Depositary Shares. Each holder of Company Common Shares or Company Money Market Preferred Shares that have been converted in the Merger into the right to receive the consideration set forth in Sections 1.2.2 and 1.2.3, as applicable, shall, upon surrender to the Exchange Agent of a Certificate or Certificates, together with a properly completed letter of transmittal covering the Company Common Shares or Company Money Market Preferred Shares, as applicable, represented by the Certificate or Certificates, receive (i) the number of whole Parent Depositary Shares (or, if an election is duly made therefor, the number of whole Parent Ordinary Shares) into which all of the Company Common Shares, represented by the holder's Common Certificate or Common Certificates, are registered.
converted in accordance with Section 1.2.2, (ii) With respect a check in an amount of U.S. dollars (after giving effect to Shares heldany required tax withholdings) equal to (A) any cash in lieu of fractional interests in shares to be paid pursuant to Section 1.5, directly plus (B) any cash dividends or indirectly, through other distributions that the Depository Trust Company holder has the right to receive pursuant to Section 1.3.6 and/or (“DTC”), Parent and iii) a check in an amount of U.S. dollars (after giving effect to any required tax withholdings) equal to the aggregate amount of the Preferred Consideration which all of the Company shall cooperate Money Market Preferred Shares, represented by the holder's Preferred Certificate or Preferred Certificates, are converted pursuant to establish procedures with the Paying AgentSection 1.2.3. Until so surrendered, DTCeach Common Certificate shall, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the number of whole Parent Depositary Shares and/or Parent Ordinary Shares, as applicable, into which the Company Common Shares represented by that Common Certificate are converted in accordance with Section 1.2.2 and the applicable Merger amounts provided in the foregoing clause (ii) and each Preferred Certificate shall, after the Effective Time, represent for all purposes only the right to receive the Preferred Consideration as contemplated into which the Company Money Market Preferred Shares represented by that Preferred Certificate are converted in accordance with Section 3.03(a)1.2.3.
(iv) 1.3.3. If the payment of any Merger Consideration is Parent Depositary Shares, Parent Ordinary Shares or Preferred Consideration, as applicable, are to be made issued or paid to a Person person other than the Person in whose name the registered holder of Company Common Shares or Company Money Market Preferred Shares, as applicable, represented by a Certificate or Certificates surrendered Shares is registered on the stock transfer books of the Companywith respect thereto, it shall be a condition of to this issuance or payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and that the Person (as defined in Section 2.1.1) requesting such this issuance or payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the this issuance or payment of the Merger Consideration to a Person other than the registered holder of the these Company Common Shares surrenderedor Company Money Market Preferred Shares, as applicable, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have this tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(c) All Merger Consideration paid upon 1.3.4. The stock transfer books of the transfer of Shares in accordance with the terms hereof Company shall be deemed closed at the close of trading on the New York Stock Exchange ("NYSE") on the day prior to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, and thereafter there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available Company Common Shares or Company Money Market Preferred Shares that were outstanding prior to the Paying Agent Effective Time. After the Effective Time, Certificates presented to the Surviving Corporation for transfer shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article I.
1.3.5. Any Parent Ordinary Shares or Parent Depositary Shares to be issued in respect of Company Common Shares (and any cash in lieu of fractional interests in Parent Ordinary Shares or Parent Depositary Shares to be paid pursuant to Section 3.04(a1.5, plus any cash dividend or other distribution that a former holder of Company Common Shares has the right to receive pursuant to Section 1.3.6) (and any interest or other income earned thereon) Preferred Consideration to be paid in respect of Company Money Market Preferred Shares, in each case pursuant to this Article I, that remains unclaimed by the holders any former holder of Company Common Shares twelve or Company Money Market Preferred Shares six months after the Effective Time shall be returned held by the Exchange Agent (or a successor agent appointed by Parent) or shall be delivered to Parentthe Depositary upon the instruction of Parent and held by the Depositary, upon demand, and any such holder who has not exchanged such Shares in either case subject to the instruction of Parent in an account or accounts designated for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonpurpose. Notwithstanding the foregoing, Parent shall not be liable to any former holder of Company Common Shares or Company Money Market Preferred Shares for any securities delivered or any amount paid by the Depositary, the Exchange Agent or its nominee, as the case may be, to a public official pursuant to applicable abandoned property, escheat or similar property laws. Any amounts cash remaining unclaimed by holders of Company Common Shares or Company Money Market Preferred Shares two years after the Effective Time (or any earlier date immediately prior to such that time when the amounts as this cash would otherwise escheat to or become property of any Governmental Authority shall becomeEntity (as defined in Section 2.1.4.1)) or as is otherwise provided by applicable Law shall, to the extent permitted by Applicable applicable Law, become the property of the Surviving Corporation or Parent, as Parent free may determine (provided that unclaimed Preferred Consideration shall become property of the Surviving Corporation).
1.3.6. No dividends or other distributions with respect to Parent Depositary Shares and clear Parent Ordinary Shares issuable with respect to the Company Common Shares shall be paid to the holder of any claims unsurrendered Common Certificates until those Common Certificates are surrendered as provided in this Article I. Upon surrender, there shall be issued and/or paid to the holder of the Parent Depositary Shares or interest Parent Ordinary Shares issued in exchange therefor, without interest, (A) at the time of surrender, the dividends or other distributions payable with respect to those Parent Depositary Shares and Ordinary Depositary Shares with a record date on or after the date of the Effective Time and a payment date on or prior to the date of this surrender and not previously paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to those Parent Depositary Shares and Parent Ordinary Shares with a record date on or after the date of the Effective Time but with a payment date subsequent to surrender. For purposes of dividends or other distributions in respect of Parent Depositary Shares and Parent Ordinary Shares, all Parent Depositary Shares and Parent Ordinary Shares to be issued and delivered pursuant to the Merger shall be deemed issued and outstanding as of the Effective Time, and holders of these shares shall not be entitled to receive any Person previously entitled theretodividend in respect of the calendar year 1999 or any other dividend in respect of which the record date is prior to the date of the Effective Time.
Appears in 2 contracts
Sources: Merger Agreement (Young & Rubicam Inc), Merger Agreement (WPP Group PLC)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company nationally recognized financial institution reasonably acceptable to act as agent Parent and the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Company Shares (the “Certificates”) or (ii) uncertificated Company Shares (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, which Parent shall deposit, appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositdeposit with, or otherwise make available to, the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.04(d), all or a portion of the Company Equity Award Consideration to all or a portion of the Employee Holders). Parent agrees to make available to the Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is entitled pursuant to Section 2.03(f). Promptly after the Effective Time (and in any event within five (5) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to be depositedsend, with to each holder of Company Shares at the Paying Agent cash sufficient to pay Effective Time (other than the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the immediately preceding sentenceCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange Agent and shall include customary provisions with respect to delivery of an “Payment Fund”)agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. The Payment Fund Such letter of transmittal shall not be used for any purpose other than to pay the Offer Price in the Offer form and have such provisions as Parent and the Merger Consideration to holders of Shares in the MergerCompany may reasonably agree.
(b) Except as provided in this Section 3.04(b), at Each holder of Company Shares that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration (i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and other than the Company Transfer Agent, automatically upon the Effective Time, Restricted Stock) shall be entitled to receive, and Parent shall cause upon (i) surrender to the Paying Exchange Agent to pay and deliver of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as promptly as possible after the Effective TimeExchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which payable for each such holder shall become entitled pursuant Section 3.03(a)Company Share represented by such Certificate or for each such Uncertificated Share. The Parent Shares constituting part of such Merger Consideration, and the Shares so exchanged at Parent’s option, shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares helduncertificated book-entry form, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofunless a physical certificate is required under Applicable Law. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated and the right to receive any dividends or other distributions pursuant to Section 2.03(f). At the time set forth in Section 2.04(e), each Non-Employee Holder shall be entitled to receive such Non-Employee Holder’s Company Equity Award Consideration and, if determined by Parent pursuant to Section 3.03(a2.04(e), all or a portion of the Company Equity Award Consideration payable to all or a portion of the Employee Holders shall be paid pursuant to this Section 2.03. No interest shall be paid or shall accrue on any cash payable upon surrender of any Company Shares or upon the Company Equity Award Consideration.
(ivc) If any portion of the payment of any Merger Consideration (other than in respect of the Company Restricted Stock) is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all transfer and other similar pay to the Exchange Agent any Transfer Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent and Parent that such Taxes either have Transfer Tax has been paid or are is not applicablepayable. None The payment of Parentany transfer, Purchaser or the Surviving Corporation shall have any liability for the transfer documentary, sales, use, stamp, registration, value-added and other similar Taxes described and fees (including any penalties and interest) (“Transfer Taxes”) incurred solely by a holder of Company Shares in this Section 3.04(b)(iv) under connection with the Merger and any circumstanceother transactions contemplated hereby, and the filing of any related Tax Returns, shall be the sole responsibility of such holder.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Company Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Company Shares twelve that have been converted into the right to receive the Merger Consideration nine months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Company Shares for the Merger Consideration in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for for, and Parent shall remain liable for, payment of the Merger Consideration and any dividends and distributions with respect thereto pursuant to Section 2.03(f), in respect of such Company Shares without any interest thereonthereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, Parent shall not be liable to any holder of Company Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Company Shares that have been converted into the right to receive the Merger Consideration two (2) years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of Parent constituting part of the Merger Consideration, and no cash proceeds from the sale of fractional shares as provided in Section 2.06, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.03. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of Parent have been registered, the amount of any cash proceeds from the sale of fractional shares to which such Person is entitled pursuant to Section 2.06 and, at the time of such surrender or transfer, the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender or transfer with respect to such securities.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Pioneer Natural Resources Co)
Surrender and Payment. (a) Prior to the Acceptance DateTime, Parent shall appoint (pursuant to an agreement in a bank form reasonably acceptable to the Company) the Company’s transfer agent or trust company another agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of (i) making payments to the holders of Shares entitled to receive the Offer Price pursuant to Section 2.01 and (ii) exchanging for the Merger Consideration (A) certificates representing Shares (the “Certificates”) or (B) uncertificated Shares represented by book entry (the “Uncertificated Shares”). At or prior to the Acceptance Time, Parent or one of its Affiliates shall deposit with the Exchange Agent, for the benefit of the holders of Shares validly tendered (and not validly withdrawn) pursuant to Section 3.03(a). Promptly after (and the Offer, cash in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash an amount sufficient to make the payment of pay the aggregate Offer Price payable required to be paid pursuant to Section 2.01(d2.01(f). As of At or prior to the Effective Time, Parent or one of its Affiliates shall deposit, or shall cause to be deposited, deposit with the Paying Agent Exchange Agent, for the benefit of holders of Shares issued and outstanding immediately prior to the Effective Time, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) be paid in respect of the Certificates and the Uncertificated Shares (such cash, together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any other purpose other than and, in the event that the Payment Fund shall at any time be insufficient to pay make the payments of the Offer Price in the Offer and or the Merger Consideration contemplated by this Agreement, Parent shall, or shall cause one of its Affiliates to, promptly deposit additional funds with the Exchange Agent in an amount sufficient to holders make such payments. Promptly after the Effective Time, and in any event not later than three Business Days following the Effective Date, Parent shall cause the Exchange Agent to send to each holder of Shares as of the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any Each holder of Shares held in direct registry form through that have been converted into the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (right to receive the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration payable for each Share represented by a Certificate or for each Uncertificated Share. From and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, and until so surrendered or transferred, as the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05case may be, each such Certificate or Uncertificated Share shall be deemed at any time after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Table of Contents Corporation, Parent or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(de) Any portion of the Merger Consideration made available to deposited with the Paying Exchange Agent pursuant to Section 3.04(a3.07(a) (and any interest or other income earned thereon) that remains unclaimed by the holders any holder of Shares twelve 12 months after the Effective Time shall be returned to ParentParent or one of its Affiliates, upon demand, and any such holder who that has not exchanged such its Shares for the Merger Consideration in accordance with this Section 3.04 3.07 prior to that such time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares Shares, without any interest thereon. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of Shares for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares as of 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 Parent Parent, free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to Section 3.07(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent or one of its Affiliates upon demand.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sonic Financial Corp), Merger Agreement (Speedway Motorsports Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Continental Stock Transfer & Trust Company as the exchange agent (or trust company such other nationally recognized exchange agent agreed to between the parties) (the “Exchange Agent”) to act as agent (for the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that Company’s stockholders who shall become entitled to receive the aggregate Offer Price funds pursuant to Section 2.01(d) and this Agreement, including as agent (the “Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration Consideration, certificates representing shares of Company Common Stock (the Shares pursuant “Certificates;” provided, however, that any references herein to Section 3.03(a“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Exchange Agent cash sufficient to pay the aggregate Per Share Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the aggregate Per Share Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the aggregate Per Share Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of twelve (12) months after the Effective Date or the full payment of the aggregate Per Share Merger Consideration. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Per Share Merger Consideration in respect of such shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of Shares shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the MergerCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent for use in such exchange).
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in this Section 3.04(b)respect of each share of Company Common Stock represented by a Certificate, at the Effective Timepromptly, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-party intermediaries entry transfer of shares of Company Common Stock, and, in each case, delivery to ensure that the Paying Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures documents as agreed may reasonably be requested by Parent, the Company, the Paying Exchange Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Per Share Merger Consideration. No interest shall be paid or accrued on the applicable Merger Consideration as contemplated by Section 3.03(a)cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Per Share Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Per Share Merger Consideration in respect of such Shares Consideration, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of Shares immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 2 contracts
Sources: Merger Agreement (Del Taco Restaurants, Inc.), Merger Agreement (Jack in the Box Inc /New/)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, --------------------- Parent shall appoint a bank or trust company organized under the laws of the United States or any state thereof with capital, surplus and undivided profits of at least $500,000,000 and reasonably acceptable to the Company to act as disbursing agent (the “Depository "Disbursing Agent”") for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the Merger ---------------- Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, in form and substance reasonably acceptable to the Company, and Parent shall at or prior to the Effective Time deposit or cause to be deposited with the Disbursing Agent cash in an aggregate Offer Price payable amount sufficient to make all of the payments pursuant to Section 2.01(d3.02 to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund"). As of -------------
(b) Promptly after the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent Surviving Corporation shall cause the Paying Disbursing Agent to pay and deliver mail to each person who was a record holder as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time of an outstanding certificate or certificates which immediately prior to represent only the Effective Time represented Shares (the "Certificates") ------------ and whose Shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 3.02, a form of letter of transmittal, in form and substance reasonably satisfactory to the Company (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent), and instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender to the Disbursing Agent of a Certificate, together with such letter of transmittal duly executed and such other customary documents as contemplated may be required, the holder of such Certificate shall be paid promptly in exchange therefor cash in an amount equal to the product of the number of Shares represented by Section 3.03(a)such Certificate multiplied by the Merger Consideration, and such Certificate shall forthwith be canceled. No interest will be paid or accrued on the cash payable upon the surrender of the Certificates.
(ivc) If the payment of any Merger Consideration is to be made to a Person person other than the Person person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.03, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other Subsidiary of Parent, Purchaser or any wholly owned Subsidiary of the Surviving Corporation Company) shall have represent for all purposes only the right to receive the Merger Consideration in cash multiplied by the number of Shares evidenced by such Certificate, without any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceinterest thereon.
(ce) At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, all Shares issued and outstanding prior to the Effective Time shall cease to be outstanding and shall automatically be cancelled and cease to exist, and, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable law. All Merger Consideration cash paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be no further registration canceled and exchanged for cash as provided in this Article III. At the close of transfers business on the day of Sharesthe Effective Time, the stock ledger of the Company shall be closed.
(df) Any portion At any time more than 12 months after the Effective Time, the Disbursing Agent shall upon demand of the Merger Consideration Parent deliver to it any funds which had been made available to the Paying Disbursing Agent and not disbursed in exchange for Certificates (including, without limitation, all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, holders of Certificates shall look only to Parent (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates held by them. None of Parent, the Company, the Surviving Corporation nor the Disbursing Agent shall be liable to any holder of a Certificate for any Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to Section 3.04(a) (and any interest abandoned property, escheat or other income earned thereon) that remains unclaimed by the holders of Shares twelve months similar law. Subject to applicable law and public policy, if any Certificates shall not have been surrendered prior to three years after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 (or immediately prior to that time shall thereafter look only to Parent for payment of the such earlier date on which any Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts Certificate would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity), any amounts payable in respect of such Certificate shall, to the extent permitted by Applicable Lawapplicable law and public policy, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (International Flavors & Fragrances Inc)
Surrender and Payment. (a) Prior At or prior to the Acceptance Dateanticipated Effective Time, Parent the Buyer Parties shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging shares of Common Stock for Merger Consideration in accordance with this Article III. Prior to the Effective Time, Parent and the Company will develop and finalize a letter of transmittal which shall be in customary form and have such other provisions as to which Parent and the Company may reasonably agree (which letter of transmittal shall specify that the delivery of the Merger Consideration shall be effected, and risk of loss and title shall pass, only upon proper delivery of the applicable share certificates to the Exchange Agent if the applicable shares of Common Stock are certificated) (the “Letter of Transmittal”) for use in effecting delivery of shares of Common Stock to the Exchange Agent. No later than 15 Business Days prior to the anticipated Closing Date, the Buyer Parties shall cause the Exchange Agent to send to each holder of record of shares of Common Stock as of the Effective Time, a Letter of Transmittal, together with instructions for effecting the surrender of shares of Common Stock in exchange for the Merger Consideration Consideration.
(b) At or prior to the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent and Buyer shall deposit, or shall cause to be deposited, with the Depository Agent cash Exchange Agent, in trust for the benefit of the holders of shares of Common Stock (other than any Cancelled Shares), Net Option Shares, and Net RSU Shares, for exchange in accordance with this Article III, evidence of book entry shares or awards to the extent possible or in the alternative shares in certificated form representing the number of Parent Shares and an amount of cash, in each case, sufficient to make pay to the payment holders of shares of Common Stock the aggregate Offer Price Per Share Cash Consideration and the aggregate Per Share Equity Consideration (such Parent Shares and cash, together with cash in lieu of fractional shares in accordance with Section 3.4 and any dividends or distributions with respect to the Parent Shares in accordance with Section 3.3(h), being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 2.01(d)3.3(a) in exchange for outstanding shares of Common Stock. As of The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Effective Time, Parent shall deposit, or shall cause Merger Consideration contemplated to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable paid pursuant to Section 3.03(a) (together with 3.1 out of the amount deposited pursuant to the immediately preceding sentenceExchange Fund. Except as specified in this Section 3.3, the “Payment Fund”). The Payment Exchange Fund shall not be used for any purpose other purpose. At the election of Parent, Parent may pay the cash value of the Per Share Equity Consideration (based on the Parent VWAP) that would otherwise be issued to a Seller that is a non-accredited investor. If a Seller delivers, no later than 2 Business Days prior to the anticipated Closing Date, a properly completed letter of transmittal surrendering such Seller’s shares of Common Stock effective as of the Closing, Parent and EHSI shall cause the Exchange Agent to pay the Offer Price Merger Consideration in respect of such Seller’s shares of Common Stock at the Closing.
(c) The Exchange Agent shall invest any cash included in the Offer Exchange Fund as directed by Parent on a daily basis in (i) short term direct obligations of the United States of America with maturities of no more than thirty (30) days or (ii) short term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest; provided, that no gain or loss thereon shall affect the amounts payable to the holders of Common Stock pursuant to this Article III. If for any reason (including losses) the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent and EHSI shall promptly deposit cash into the Exchange Fund in an amount which is equal to the deficiency in the amount of cash required to fully satisfy such cash payment obligations.
(d) Each holder of shares of Common Stock, Net Option Shares, or Net RSU Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a properly completed and validly executed Letter of Transmittal (together with the certificates representing such securities, if any) in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, will be entitled to receive (i) one or more Parent Shares (which shall be in uncertificated book entry form to the extent possible or in the alternative shares in certificated form) representing, in the aggregate, the whole number of Parent Shares that such holder has the right to receive pursuant to Section 3.1; and (ii) by wire transfer of immediately available funds an amount equal to the cash portion of the Merger Consideration that such holder has the right to holders of Shares in receive pursuant to Section 3.1 and the Merger.
(b) Except as provided other provisions contained in this Article III, including cash payable in lieu of fractional shares in accordance with Section 3.04(b3.4 and dividends and other distributions in accordance with Section 3.3(h), at the Effective Time, holders of Shares . No interest shall not be required to take paid or accrued on any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder , cash payable in lieu of Shares held fractional shares in direct registry form through the Company’s transfer agentaccordance with Section 3.4 or dividends and other distributions in accordance with Section 3.3(h). Until so surrendered, Equiniti Trust Company, LLC (formerly known as American each such share of Common Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration as contemplated by Consideration, cash payable in lieu of fractional shares in accordance with Section 3.03(a3.4 and dividends and other distributions in accordance with Section 3.3(h).
(ive) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares share of Common Stock is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay, or cause to be paid, any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsurrendered share of Common Stock, or required for any other reason relating to such holder or requesting Person, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered share of Common Stock is registered, Purchaser it shall be a condition to the registration thereof that the surrendered share of Common Stock shall be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the Merger Consideration shall pay, or cause to be paid, to the Exchange Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such share of Common Stock or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(cf) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At the Effective Time, the share transfer books of the Company shall be closed and thereafter, there shall be no further registration of transfers Transfers of Sharesshares of Company Common Stock. From and after the Effective Time, the holders of shares of Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Common Stock except the right to receive the consideration provided for, and in accordance with the procedures set forth, in this Article III or as otherwise provided herein or by applicable Law. If, after the Effective Time, certificates representing shares of Common Stock are presented to the Exchange Agent, the Surviving Corporation or Parent, such certificates shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
(dg) Any portion of the Merger Consideration made available to Exchange Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by undistributed to the holders of Shares twelve months shares of Common Stock one (1) year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his, her or its shares of Common Stock for the Merger Consideration in accordance with this Section 3.04 3.3 prior to that time shall thereafter look only to Parent or Buyer for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares. Notwithstanding the foregoing, Parent neither Parent, Buyer, Merger Sub, the Company nor the Surviving Corporation shall not be liable to any holder of Shares shares of Company Common Stock for any amount paid Merger Consideration or other amounts delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of .
(h) No dividends or other distributions with respect to Parent Shares immediately prior issued in the Merger shall be paid to such time when the amounts would otherwise escheat to or become property holder of any Governmental Authority unsurrendered shares of Common Stock until such shares of Common Stock are surrendered as provided in this Section 3.3. Following such surrender, subject to the effect of escheat, Tax or other applicable Law, there shall becomebe paid, without interest, to the extent permitted by Applicable Lawrecord holder of the Parent Shares issued in exchange therefor (i) at the time of such surrender, all dividends and other distributions payable in respect of such Parent Shares with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the property dividends or other distributions payable with respect to such Parent Shares with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of Parent free Shares, all Parent Shares to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and clear outstanding as of the Effective Time.
(i) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to this Section 3.3 to pay for Dissenting Shares for which appraisal rights shall have been perfected shall be returned to Parent or Buyer upon the settlement or final and non appealable adjudication of any claims claim for appraisal rights asserted with respect to such Dissenting Shares.
(j) All Merger Consideration issued and paid to a holder of Company Common Stock upon conversion of the Company Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 3.3(h) or interest Section 3.4) shall be deemed to have been issued and paid in full satisfaction of any Person previously entitled theretoall rights pertaining to such Common Stock.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) the Shares pursuant to Section 3.03(a)Certificates and (ii) the Book-Entry Shares. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent or one of its Affiliates shall depositmake available to the Paying Agent, or as needed, the aggregate Closing Amount payable in respect of all the Shares converted in accordance with Section 3.02(a) and represented by the Certificates and the Book-Entry Shares (such cash, the “Consideration Fund”). For the avoidance of doubt, Parent shall cause not be required to be deposited, deposit any funds related to any CVR with the Paying Rights Agent cash sufficient unless and until such deposit is required pursuant to the terms of the CVR Agreement. In the event the Consideration Fund shall be insufficient to pay the aggregate Merger Consideration payable Closing Amount (including on account of any Closing Amount returned to Parent pursuant to Section 3.03(a3.03(h)) (together with or any Closing Amount becomes payable after a holder of Shares fails to perfect, waives, withdraws or otherwise loses the amount deposited pursuant right to appraisal under Section 262 of the DGCL, Parent shall promptly deliver, or cause to be delivered, additional funds to the immediately preceding sentence, Paying Agent in an amount equal to the “Payment Fund”)deficiency required to make such payments. The Payment Consideration Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except as provided With respect to Certificates, promptly (and in this Section 3.04(b), at any event not later than the third (3rd) Business Day) after the Effective Time, holders Parent shall send, or shall cause the Paying Agent to send, to each holder of Shares shall not be required to take any action with respect to the exchange record of their Shares for the Merger Consideration.
each such Certificate (i) Any a notice advising such holder of Shares held the effectiveness of the Merger, (ii) a letter of transmittal in direct registry customary form through specifying that delivery shall be effected, and risk of loss and title to a Certificate shall pass, only upon delivery of the Company’s transfer agent, Equiniti Trust Company, LLC Certificate (formerly known or affidavit of loss in lieu of a Certificate as American Stock Transfer & Trust Company, LLCprovided in Section 3.10) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent (a “Letter of Transmittal”) and (iii) instructions for surrendering a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) to the Company Transfer Paying Agent. Upon surrender to the Paying Agent of a Certificate (or affidavit of loss in lieu of a Certificate as provided in Section 3.10) together with a duly executed and completed Letter of Transmittal and such other documents as may reasonably be required by the Paying Agent pursuant to such instructions, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible practicable after the Effective TimeTime the Closing Amount payable for each Share represented by such Certificate pursuant to Section 3.02(a). Any Certificate that has been so surrendered shall be cancelled by the Paying Agent. Until so surrendered or transferred, as the case may be, and subject to the terms of Section 3.04, each such Certificate or Book-Entry Share shall represent after the Effective Time for all purposes only the right to receive the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged payable in respect thereof. No interest shall be forthwith canceled. Payment paid or shall accrue on the cash payable upon the surrender or transfer of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registeredany Certificate or Book-Entry Shares.
(iic) With respect to Shares heldBook-Entry Shares, directly or indirectly, through Parent shall cause the Depository Trust Company (“DTC”Paying Agent to pay and deliver the Closing Amount payable therefor pursuant to Section 3.02(a), in each case promptly after the Effective Time and upon surrender thereof to the Paying Agent by receipt of an “agent’s message” in customary form (or such other evidence of transfer, if any, as the Paying Agent may reasonably request). The Company and Parent and the Company shall cooperate to, and Parent shall cause the Paying Agent to, (i) deliver to DTC or its nominees, or to holders of Book-Entry Shares, in each case to the extent applicable or required, any notice with respect to the effectiveness of the Merger and any instructions for surrendering Book-Entry Shares and (ii) establish procedures with the Paying Agent, DTC, DTC’s nominees Agent and such other necessary third-party intermediaries DTC to ensure that the Paying Agent will transmit to DTC or its nominees as promptly soon as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parentprocedures, the Company, the Paying Agent, DTC, DTC’s nominees and Closing Amount payable for each such other necessary thirdBook-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled Entry Share pursuant to Section 3.03(a3.02(a).
(iiid) No interest shall accrue With respect to any Certificate or be paid on Book-Entry Share, if any portion of the Merger Consideration payable (including payment in the form of or with respect to holders of Shares in accordance with this Section 3.04(bany CVR) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred and (ii) the Person requesting such payment shall have paid all transfer and other similar pay to the Paying Agent any Taxes required to be paid by reason the Paying Agent, Parent or their respective Affiliates as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Book-Entry Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or is not payable.
(e) Until disbursed in accordance with this Agreement, the cash in the Consideration Fund will be invested by the Paying Agent as directed by Parent; provided that (i) no such investment or losses thereon shall affect the Closing Amount payable to the holders of Shares and (ii) following any such losses or events that result in the Consideration Fund becoming not immediately available or that result in the amount of funds in the Consideration Fund being insufficient to promptly pay the portion of the aggregate Closing Amount that remains unpaid, Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Shares to the extent of such insufficiency. Any interest and other income resulting from such investments shall be paid solely to Parent.
(f) From and after the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation or the Paying Agent, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3 and the CVR Agreement.
(g) Any portion of the Consideration Fund (and any earnings, interest or other income earned thereon) that remains unclaimed by the holders of Shares six months after the Effective Time shall be returned to Parent or one of its Affiliates, upon demand, and any such holder who has not applicableexchanged its Shares for the Closing Amount in accordance with this Section 3.03 prior to that time shall thereafter look only to Parent (subject to abandoned property, escheat or similar laws), as general creditors thereof, for payment of the Closing Amount in respect of such Shares without any interest thereon. None Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall be liable to any holder of Shares for any amounts paid to a Governmental Authority pursuant to applicable abandoned property, escheat or similar laws. If any Certificate or Book-Entry Share has not been surrendered immediately prior to the date on which the Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority, any such Merger Consideration in respect of such Certificate or Book-Entry Share shall, to the extent permitted by applicable Law, immediately prior to such time become the property of Parent, Purchaser free and clear of all claims or the Surviving Corporation shall have interest of any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancePerson previously entitled thereto.
(ch) Any portion of the Closing Amount made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent or one of its Affiliates upon demand.
(i) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Certificate or Book-Entry Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Zogenix, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank ▇▇ ▇▇▇▇▇▇, N.A., as paying agent or trust company to act as such other paying agent (with the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company’s prior approval, which shall not be unreasonably withheld (the “Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration (i) certificates representing the Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). Parent shall make available or cause to be made available to the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments of the Per Share Merger Consideration pursuant to Section 3.03(a4.1(a) (such cash being hereinafter referred to as the “Exchange Fund”). If a Dissenting Shareholder effectively withdraws its demand for, or loses its, appraisal rights pursuant to Article 13 of the GBCC with respect to any Dissenting Shares, Parent shall make available or cause to be made available to the Paying Agent additional funds in an amount equal to the product of (i) the number of Dissenting Shares for which the Dissenting Shareholder has withdrawn its demand for, or lost its, appraisal rights pursuant to Article 13 of the GBCC and (ii) the Per Share Merger Consideration.
(b) Promptly after the Effective Time (and in any event no later than the first within five (5) Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(dDays thereafter). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent Surviving Corporation shall cause the Paying Agent to pay and deliver as promptly as possible after mail to each holder of record of Shares (other than holders of Excluded Shares to the Effective Time, extent such holders do not also hold Shares that are not Excluded Shares) (i) a letter of transmittal in customary form approved by counsel to the Merger Consideration Company prior to which such holder the Acceptance Time specifying that delivery shall become entitled pursuant Section 3.03(a)be effected, and the Shares so exchanged risk of loss and title shall be forthwith canceled. Payment pass, only upon delivery of the applicable Merger Consideration with respect to such Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or transfer of the Uncertificated Shares shall be made only to the Person Paying Agent, such letter of transmittal to be in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or the Uncertificated Shares in exchange for the Per Share Merger Consideration. Upon (A) surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed, or (B) 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, the holder of such Certificate or Uncertificated Shares shall cooperate be entitled to establish procedures with 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 represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) or Uncertificated Shares multiplied by (y) the Per Share Merger Consideration, and the Certificate so surrendered and the Uncertificated Shares so transferred shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Uncertificated Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a check for any cash to be exchanged upon due surrender of the Certificate may be issued to such transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, DTC, DTC’s nominees accompanied by all documents required to evidence and effect such other necessary third-party intermediaries transfer and to ensure evidence that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Company of Sharesthe Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificate is presented to the Surviving Corporation, Parent or the Paying Agent for transfer, it shall be cancelled and exchanged for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this Article IV.
(d) Any portion of the Merger Consideration made available to Exchange Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months Company Shareholders for one year after the Effective Time shall be returned delivered to Parent, upon demand, and any such the Surviving Corporation. Any holder of Shares (other than Excluded Shares) who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior to that time Article IV shall thereafter look only to Parent the Surviving Corporation for payment of the Per Share Merger Consideration (after giving effect to any required Tax withholdings as provided in respect Section 4.2(g)) upon due surrender of such Shares its Certificates (or affidavits of loss in lieu thereof) or due transfer of its Uncertificated Shares, without any interest thereon. Notwithstanding the foregoing, Parent none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall not be liable to any former holder of Shares for any amount paid properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed Laws.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders 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 customary amount and upon such customary and reasonable terms as may be required by Parent as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will issue a check in the amount (after giving effect to any required Tax withholdings as provided in Section 4.2(g)) equal to the number of Shares immediately prior represented by such lost, stolen or destroyed Certificate multiplied by the Per Share Merger Consideration.
(f) No Person who has perfected a demand for dissenters’ rights pursuant to Article 13 of the GBCC with respect to any Dissenting Shares shall be entitled to receive the Per Share Merger Consideration with respect to such time when Dissenting Shares owned by such Person unless and until such Person shall have effectively withdrawn or lost such Person’s right to payment of the amounts would otherwise escheat “fair value” for such shares under the GBCC with respect to such Dissenting Shares. If any such Dissenting Shareholder shall have effectively withdrawn or become property lost such right at or following the Effective Time, each Dissenting Share held by such Dissenting Shareholder shall thereupon be deemed to have been converted into and to have become, as of the Effective Time, the right to receive, without any interest thereon, the Per Share Merger Consideration. Unless and until a Dissenting Shareholder shall have effectively withdrawn or lost such Dissenting Shareholder’s right to appraisal under the GBCC with respect to Dissenting Shares, each Dissenting Shareholder shall be entitled to receive only the payment provided by Article 13 of the GBCC with respect to such Dissenting Shares. The Company shall (i) promptly notify Parent of any Governmental Authority written demands for appraisal, attempted withdrawals of such demands, and any other instruments received by the Company relating to shareholders’ rights of appraisal and with such notice to Parent provide to Parent a copy of all such demands, attempted withdrawals and other instruments received by the Company and (ii) give Parent the opportunity to direct and control all negotiations and proceedings with respect to demand for appraisal under the GBCC. The Company shall becomenot, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal, offer to settle or settle any such demands or approve any withdrawal of any such demands. Each holder of Dissenting Shares who becomes entitled under Article 13 of the GBCC to receive payment of the “fair value” for such holder’s shares shall receive such payment therefor from the Surviving Corporation after giving effect to any required withholdings as provided in Section 4.2(g) (but only after the amount thereof shall have been finally determined pursuant to the extent permitted by Applicable LawGBCC).
(g) Each of Parent, the property Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to a Person pursuant to this Agreement or the Offer any amounts that are required to be deducted and withheld with respect to the making of Parent free such payment under applicable Law. To the extent that amounts are so withheld by Parent, the Surviving Corporation or the Paying Agent, as the case may be, such withheld amounts (i) shall be remitted to the applicable Governmental Entity, and clear (ii) shall be treated for all purposes of any claims or interest this Agreement as having been paid to the Person in respect of any Person previously entitled theretowhich the applicable deduction and withholding was made.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a commercial bank or trust company that is reasonably satisfactory to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration to the Shares pursuant holders of Company Common Stock and shall enter into an Exchange Agent Agreement that is reasonably satisfactory to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, Company with the Depository Agent cash sufficient Exchange Agent. At or prior to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Exchange Agent, for the benefit (from and after the Effective Time) of the holders of shares of Company Common Stock, for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock issuable as Stock Consideration and (ii) cash sufficient to pay the aggregate Merger Consideration Cash Consideration. In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of fractional shares payable pursuant to Section 3.03(a1.06(b) (together and to pay any dividends or other distributions payable pursuant to Section 1.03(f). All book-entry shares and cash deposited with the amount deposited Exchange Agent pursuant to the immediately preceding sentence, this Section 1.03(a) shall herewith be referred to as the “Payment Exchange Fund”. Promptly after the Effective Time (and in any event within two Business Days following the Closing Date). The Payment Fund , Parent shall not be used for any purpose other than send, or shall cause the Exchange Agent to pay send, to each Person who was, immediately prior to the Offer Price in the Offer and Effective Time, a holder of record of shares of Company Common Stock entitled to receive payment of the Merger Consideration pursuant to holders Section 1.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title 2 Table of Contents shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in the Mergersuch payment.
(b) Except 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 (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as provided the Exchange Agent may reasonably request) in this Section 3.04(b)the case of a book-entry transfer of Uncertificated Shares, at the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time, holders of Shares shall not be required Time for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid The stock transfer books of the Company shall be closed immediately upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, Time and there shall be no further registration of transfers of Sharesshares of Company Common Stock thereafter on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Corporation or the Exchange Agent for any reason, they shall be canceled and converted into the right to receive only the Merger Consideration to the extent provided for, and in accordance with and subject to the procedures set forth, in this Article 1.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.03(a) that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six months after the Effective Time shall be returned delivered to Parent or otherwise on the instruction of Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time, and no payment in lieu of fractional shares pursuant to Section 1.06(b), will be paid to the holders of any unsurrendered Certificates or Uncertificated Shares with respect to the shares of Parent Common Stock issuable upon surrender thereof until the holder of such Certificates or Uncertificated Shares shall surrender such Certificates or Uncertificated Shares in accordance with the terms of this Section 1.03. Subject to Applicable Law, promptly following the surrender of any such Certificates or Uncertificated Shares, the Exchange Agent shall deliver to the holders thereof, without interest, any dividends or other distributions with a record date after the Effective Time and theretofore paid with respect to such whole shares of Parent Common Stock and, 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 a payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
Appears in 1 contract
Sources: Merger Agreement (Metropolitan Health Networks Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent CVS and Caremark shall appoint a bank or trust company to act as mutually acceptable agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Caremark Stock (the Shares “Certificates”) or (ii) uncertificated shares of Caremark Stock (the “Uncertificated Shares”). CVS shall (x) deposit with the Exchange Agent, to be held in trust for the holders of Caremark Stock, certificates (if such shares shall be certificated) representing shares of CVS Stock issuable pursuant to Section 3.03(a2.04 in exchange for outstanding shares of Caremark Stock and (y) make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.07 and any dividends or other distributions pursuant to Section 2.05(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent CVS shall depositsend, or shall cause the Exchange Agent to send, to each holder of shares of Caremark Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be depositedeffected, with the Depository Agent cash sufficient to make the payment and risk of loss and title shall pass, only upon proper delivery of the aggregate Offer Price payable pursuant to Section 2.01(d). As Certificates or transfer of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Uncertificated Shares to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used Exchange Agent) for any purpose other than to pay the Offer Price use in the Offer and the Merger Consideration to holders of Shares in the Mergersuch exchange.
(b) Except Each holder of shares of Caremark Stock shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as provided the Exchange Agent may reasonably request) in this the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that such holder has a right to receive pursuant to Section 3.04(b)2.04. The shares of CVS Stock constituting part of such Merger Consideration, at CVS’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Caremark Stock or is otherwise required under Applicable Law. As a result of the Merger, at the Effective Time, holders all shares of Shares Caremark Stock shall not cease to be required outstanding and each holder thereof shall cease to take have any action rights with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentthereto, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only except the right to receive the applicable Merger Consideration as contemplated by payable in respect thereof and any dividends or other distributions payable in respect thereof in accordance with Section 3.03(a)2.05(f) .
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At the Effective Time, there shall be no further registration of transfers of Sharesshares of Caremark Stock that were outstanding prior to the Merger. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.05(a) that remains unclaimed by the holders of Shares twelve shares of Caremark Stock six months after the Effective Time shall be returned to ParentCVS, upon demand, and any such holder who has not exchanged such Shares shares of Caremark Stock for the Merger Consideration in accordance with this Section 3.04 2.05 prior to that time shall thereafter look only to Parent CVS for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent CVS shall not be liable to any holder of Shares shares of Caremark Stock for any amount amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Caremark Stock six years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Law, the property of Parent CVS, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of CVS constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.07, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of CVS have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.07 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
Appears in 1 contract
Sources: Merger Agreement (CVS Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (A) certificates representing shares of Company Stock (the Shares pursuant to Section 3.03(a“Certificates”) or (B) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time (and but in any no event no later than two (2) Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause the Paying Agent to be depositedsend, with to each holder of Certificates that immediately prior to the Depository Agent cash sufficient to make Effective Time represented shares of Company Stock and whose shares were converted into the payment of the aggregate Offer Price payable Merger Consideration pursuant to Section 2.01(d2.02 a letter of transmittal (in a form that was reasonably acceptable to the Company prior to the Effective Time) and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange.
(b) Each holder of Certificates that immediately prior to the Effective Time represented shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, the Merger Consideration. Payment of the Merger Consideration, in each case to which such holders are entitled pursuant to the terms of this Agreement with respect to Uncertificated Shares shall be made promptly following the Effective Time without any action on the part of the person in whose name such Uncertificated Shares are registered, except as may be required by the Paying Agent (including in respect of any applicable tax forms or other documentation required to be delivered by such holder). As No interest shall be paid or accrued with respect to the Merger Consideration payable upon surrender of Certificates or Uncertificated Shares.
(c) At or prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent Agent, for the benefit of the holders of Company Stock, an aggregate amount of cash comprising the amount sufficient to pay the aggregate Merger Consideration payable pursuant (such cash referred to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, as the “Payment Fund”). The Payment Fund shall not be used for any purpose other than for the purpose provided for in this Agreement and shall be held in trust for the benefit of the holders of Company Stock entitled to pay the Offer Price in the Offer and receive the Merger Consideration pursuant to the terms of Section 2.02. The Payment Fund shall, pending its disbursement to the holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect Company Stock and subject to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures applicable requirements of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause invested by the Paying Agent to pay and deliver as promptly as possible directed by Parent or, after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment Surviving Corporation in (i) short-term direct obligations of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
United States of America, (ii) With respect short-term obligations for which the full faith and credit of the United States of America is pledged to Shares heldprovide for the payment of principal and interest, directly (iii) short-term commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Service, Inc. or indirectlyStandard and Poor’s Ratings Services, through or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Depository Trust Company; provided that no such investment or losses shall affect the amounts payable to such holders of Company (“DTC”), Stock and Parent and the Company shall cooperate promptly replace or cause to establish procedures be replaced any funds deposited with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries Agent that are lost through any investment so as to ensure that the Payment Fund is at all times maintained at a level sufficient for the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, pay the Merger Consideration Consideration. Earnings from investments, subject to which the beneficial owners of such Shares held, directly or indirectly through DTCimmediately preceding proviso, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share and shall be deemed at any time after the Effective Time to represent only sole and exclusive property of Parent and the right to receive the applicable Merger Consideration Surviving Corporation. Except as contemplated by Section 3.03(a)2.03(g) hereof, the Payment Fund shall not be used for any other purpose.
(ivd) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(ce) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock and the holders of Certificates and Uncertificated Shares that evidenced shares of Company Stock prior to the Effective Time shall cease to have any rights with respect to such shares of Company Stock, other than the right to receive the Merger Consideration. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Paying Agent, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 2.
(df) Any portion of the Merger Consideration made available to deposited with the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.03(c) that remains unclaimed by the holders of Shares twelve shares of Company Stock 12 months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the Merger Consideration in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon, as general creditors thereof. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.04 in respect of any Appraisal Shares shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Mellon Investor Services LLC or trust company such other exchange agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”"EXCHANGE AGENT") for the purpose of exchanging Certificates representing shares of Company Common Stock and non-certificated shares represented by book entry ("BOOK-ENTRY SHARES") for the Merger Consideration. Parent will make available to the Exchange Agent, as needed, the Merger Consideration to be delivered in respect of the Shares pursuant to Section 3.03(a)shares of Company Common Stock. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositwill send, or shall will cause the Exchange Agent to be depositedsend, with to each holder of record of shares of Company Common Stock as of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(aEffective Time (other than any holder which has previously and properly surrendered all of its Certificates(s) (together with the amount deposited pursuant to the immediately preceding sentenceExchange Agent in accordance with Section 1.5 (each, an "ELECTING STOCKHOLDER")), a letter of transmittal for use in such exchange (which shall specify that the “Payment Fund”)delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent. The Payment Fund Exchange of any Book-Entry Shares shall not be used for any purpose other than effected in accordance with Parent's customary procedures with respect to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergersecurities represented by book entry.
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon (i) with respect to any Electing Stockholder, completion of the calculations required by Section 1.4(a) or (ii) with respect to any holder that is not an Electing Stockholder, surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, will be entitled to receive (A) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 1.4 and (B) a check in the amount equal to the cash portion of the Merger Consideration, if any, that such holder has the right to receive pursuant to Section 1.4 and this Article 2, including cash payable in lieu of fractional shares pursuant to Section 3.04(b2.2 and dividends and other distributions pursuant to Section 2.1(f). No interest shall be paid or accrued on any Merger Consideration, at cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. Until so surrendered, each such Certificate shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to registered in the name of a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to the registration thereof that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment delivery of the Merger Consideration shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of such registration in the payment name of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None For purposes of Parentthis Agreement, Purchaser "PERSON" means an individual, a corporation, a limited liability company, a partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a government or political subdivision or any circumstanceagency or instrumentality thereof.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Unocal Corp)
Surrender and Payment. (a) Prior to the Acceptance Merger Closing Date, Parent shall appoint a bank Computershare Trust Company, N.A. as paying agent or trust company to act as such other paying agent (with the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company’s prior approval, which shall not be unreasonably withheld (the “Paying Agent”) for the purpose of exchanging for the Per Share Merger Consideration (i) certificates representing the Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). Parent shall make available or cause to be made available to the Paying Agent amounts sufficient in the aggregate to provide all funds necessary for the Paying Agent to make payments of the Per Share Merger Consideration pursuant to Section 3.03(a4.1(a) (such cash being hereinafter referred to as the “Exchange Fund”). If a Dissenting Shareholder effectively withdraws its demand for, or loses its, appraisal rights pursuant to Article 13 of the GBCC with respect to any Dissenting Shares, Parent shall make available or cause to be made available to the Paying Agent additional funds in an amount equal to the product of (i) the number of Dissenting Shares for which the Dissenting Shareholder has withdrawn its demand for, or lost its, appraisal rights pursuant to Article 13 of the GBCC and (ii) the Per Share Merger Consideration.
(b) Promptly after the Effective Time (and in any event no later than the first within three (3) Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(dDays thereafter). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent Surviving Corporation shall cause the Paying Agent to pay and deliver as promptly as possible after mail to each holder of record of Shares (other than holders of Excluded Shares to the Effective Time, extent such holders do not also hold Shares that are not Excluded Shares) (i) a letter of transmittal in customary form approved by counsel to the Merger Consideration Company prior to which such holder the Acceptance Time specifying that delivery shall become entitled pursuant Section 3.03(a)be effected, and the Shares so exchanged risk of loss and title shall be forthwith canceled. Payment pass, only upon delivery of the applicable Merger Consideration with respect to such Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or transfer of the Uncertificated Shares shall be made only to the Person Paying Agent, such letter of transmittal to be in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), form and have such other provisions as Parent and the Company may reasonably agree, and (ii) instructions for use in effecting the surrender of the Certificates (or affidavits of loss in lieu thereof as provided in Section 4.2(e)) or the Uncertificated Shares in exchange for the Per Share Merger Consideration. Upon (A) surrender of a Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) to the Paying Agent in accordance with the terms of such letter of transmittal, duly executed, or (B) 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, the holder of such Certificate or Uncertificated Shares shall cooperate be entitled to establish procedures with 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 (1) the number of Shares represented by such Certificate (or affidavit of loss in lieu thereof as provided in Section 4.2(e)) or Uncertificated Shares multiplied by (2) the Per Share Merger Consideration, and the Certificate so surrendered and the Uncertificated Shares so transferred shall forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Uncertificated Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, a check for any cash to be exchanged upon due surrender of the Certificate may be issued to such transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, DTC, DTC’s nominees accompanied by all documents required to evidence and effect such other necessary third-party intermediaries transfer and to ensure evidence that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration transfers on the stock transfer books of transfers the Company of Sharesthe Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificate is presented to the Surviving Corporation, Parent or the Paying Agent for transfer, it shall be cancelled and exchanged for the cash amount in immediately available funds to which the holder thereof is entitled pursuant to this Article IV.
(d) Any portion of the Merger Consideration made available to Exchange Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months Company Shareholders for one year after the Effective Time shall be returned delivered to Parent, upon demand, and any such the Surviving Corporation. Any holder of Shares (other than Excluded Shares) who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior to that time Article IV shall thereafter look only to Parent the Surviving Corporation for payment of the Per Share Merger Consideration (after giving effect to any required Tax withholdings as provided in respect Section 4.2(g)) upon due surrender of such Shares its Certificates (or affidavits of loss in lieu thereof) or due transfer of its Uncertificated Shares, without any interest thereon. Notwithstanding the foregoing, Parent none of the Surviving Corporation, Parent, the Paying Agent or any other Person shall not be liable to any former holder of Shares for any amount paid properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed Laws.
(e) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders 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 customary amount and upon such customary and reasonable terms as may be required by Parent as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such Certificate, the Paying Agent will issue a check in the amount (after giving effect to any required Tax withholdings as provided in Section 4.2(g)) equal to (i) the number of Shares immediately prior represented by such lost, stolen or destroyed Certificate multiplied by (ii) the Per Share Merger Consideration.
(f) No Person who has perfected a demand for dissenters’ rights pursuant to Article 13 of the GBCC with respect to any Dissenting Shares shall be entitled to receive the Per Share Merger Consideration with respect to such time when Dissenting Shares owned by such Person unless and until such Person shall have effectively withdrawn or lost such Person’s right to payment of the amounts would otherwise escheat “fair value” for such shares under the GBCC with respect to such Dissenting Shares. If any such Dissenting Shareholder shall have effectively withdrawn or become property lost such right at or following the Effective Time, each Dissenting Share held by such Dissenting Shareholder shall thereupon be deemed to have been converted into and to have become, as of the Effective Time, the right to receive, without any interest thereon, the Per Share Merger Consideration. Unless and until a Dissenting Shareholder shall have effectively withdrawn or lost such Dissenting Shareholder’s right to appraisal under the GBCC with respect to Dissenting Shares, each Dissenting Shareholder shall be entitled to receive only the payment provided by Article 13 of the GBCC with respect to such Dissenting Shares. The Company shall give Parent (i) prompt notice of any Governmental Authority written demands for appraisal, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law that are received by the Company relating to shareholders’ rights of appraisal and (ii) the opportunity to participate in and control all negotiations and proceedings with respect to demand for appraisal under the GBCC. The Company shall becomenot, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal, offer to settle or settle any such demands or approve any withdrawal of any such demands. Each holder of Dissenting Shares who becomes entitled under Article 13 of the GBCC to receive payment of the “fair value” for such holder’s shares shall receive such payment therefor from the Surviving Corporation after giving effect to any required withholdings as provided in Section 4.2(g) (but only after the amount thereof shall have been finally determined pursuant to the extent permitted by Applicable LawGBCC), and such shares shall be retired and cancelled.
(g) Each of Parent, the property Company, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold (or cause to be deducted and withheld) from the consideration otherwise payable to a Person pursuant to this Agreement any amounts that are required to be deducted and withheld with respect to the making of Parent free such payment under applicable Law. To the extent that amounts are so withheld or deducted by Parent, the Company, the Surviving Corporation or the Paying Agent, as the case may be, such withheld or deducted amounts (i) shall be remitted to the applicable Governmental Entity, and clear (ii) shall be treated for all purposes of any claims or interest this Agreement and the transactions contemplated by this Agreement as having been paid to the Person in respect of any Person previously entitled theretowhich the applicable deduction and withholding was made.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging shares of Company Common Stock for the Merger Consideration payable in respect thereof. As soon as reasonably practicable after the Shares Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of one or more Certificates as of the Effective Time, whose shares of Company Common Stock were converted into the right to receive the Merger Consideration pursuant to Section 3.03(a2.6 (Effect on Capital Stock). Promptly after , a letter of transmittal (which shall specify that delivery shall be effected, and in any event no later than risk of loss and title to the first Business Day after) the Acceptance DateCertificates shall pass, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment only upon proper delivery of the aggregate Offer Price payable pursuant Certificates to Section 2.01(d)the Exchange Agent) in such form as Parent may specify subject to the Company’s reasonable approval prior to the Effective Time, including instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the Merger Consideration. As of At the Effective Time, Parent shall deposit, or shall cause to be deposited, deposited with the Paying Agent Exchange Agent, for the benefit of the holders of shares of Company Common Stock, shares of Parent Common Stock (which shall be in non-certificated book-entry form) to be issued pursuant to Section 2.6 (Effect on Capital Stock) and an amount of cash in U.S. dollars sufficient to be paid pursuant to Section 3.5 (No Fractional Shares), payable to holders of the Book-Entry Shares or payable to the holders of Certificates upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof), in each case, pursuant to the provisions of Article II and this Article III. Following the Effective Time, Parent agrees to make available to the Exchange Agent, from time to time as needed, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends pursuant to Section 3.03(a3.1(f) (together Dividends). All cash and book-entry shares representing Parent Common Stock deposited with the amount deposited pursuant Exchange Agent shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Exchange Fund”). The Payment Exchange Agent shall deliver the Merger Consideration (and any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) or cash to be paid for dividends in accordance with Section 3.1(f)) out of the Exchange Fund. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer Exchange Fund as directed by Parent. Any interest and other income resulting from such investments shall be the Merger Consideration to holders of Shares in the Mergerproperty of, and paid to, Parent.
(b) Except as provided in this Section 3.04(b), at Each holder of one or more Certificate(s) representing shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
, upon surrender to the Exchange Agent of such Certificate(s) (or effective affidavit of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) Any the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (ii) if applicable, any cash to be paid in lieu of Shares held any fractional share of Parent Common Stock in direct registry form through the Company’s transfer agentaccordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLCany dividends in accordance with Section 3.1(f) (the “Company Transfer Agent”) Dividends), in each case, without interest (less any required Tax withholding). Until so surrendered, each such Certificate shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, represent for all purposes only the right to receive such (A) Merger Consideration to which such Consideration, (B) cash in lieu of any fractional shares and (C) unpaid dividends. No holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Book-Entry Shares shall be required to deliver a Certificate or completed letter of transmittal to the Exchange Agent to receive (1) the number of whole shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 2.6 (Effect on Capital Stock), (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, without interest (less any required Tax withholding). No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or unpaid dividends payable to holders of Certificates or Book-Entry Shares.
(c) With respect to Certificate(s), in the event of a transfer of ownership of any Certificate that is not registered in the transfer books of the Company as of the Effective Time, (i) any Merger Consideration, (ii) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (iii) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, may be issued or paid to such a transferee if the Certificate is presented to the Exchange Agent, properly endorsed or otherwise in proper form for transfer, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable, in each case, in form and substance, reasonably satisfactory to the Exchange Agent. With respect to Book-Entry Shares, issuance or payment of (1) any Merger Consideration, (2) if applicable, any cash to be paid in lieu of any fractional share of Parent Common Stock in accordance with Section 3.5 (No Fractional Shares) and (3) if applicable, any dividends in accordance with Section 3.1(f) (Dividends), in each case, shall only be made only to the Person in whose name such Book-Entry Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees registered in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason Company as of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in Article II and this Article III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of Company Common Stock one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his or her shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 3.1 prior to that time shall thereafter look only to Parent for payment delivery of the Merger Consideration in respect of such Shares without any interest thereonholder’s shares of Company Common Stock. Notwithstanding the foregoing, Parent neither Parent, Merger Sub, nor the Company shall not be liable to any holder of Shares shares of Company Common Stock for any amount paid Merger Consideration, cash in lieu of fractional shares or any unpaid dividends delivered to a public official any Governmental Entity pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts Merger Consideration, cash in lieu of fractional shares or any unpaid dividends remaining unclaimed by holders of Shares shares of Company Common Stock immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEntity shall, to the extent permitted by Applicable applicable Law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends with respect to shares of Parent Common Stock issued in the Merger shall be paid to the holder of any Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered or transferred, as applicable, as provided in this Section 3.1. Following such surrender, subject to the effect of escheat or abandoned property (in accordance with Section 3.1(e)), Tax or other applicable Law, shall be paid, without interest, to the record holder of the shares of Parent Common Stock issued in exchange therefor (i) at the time of such surrender, all dividends payable in respect of such shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, the dividends payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to the Merger shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.10, each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Company and shall have no rights as a stockholder of the Surviving Corporation and such Certificate shall forthwith be cancelled.
(b) Prior to the Acceptance Date, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositappoint an Exchange Agent, the cost of which shall be borne fifty percent (50%) by Parent and fifty percent (50%) by the Company, reasonably acceptable to the Company to act as the Exchange Agent in the Merger (the “Exchange Agent”). Parent or the Exchange Agent shall cause deduct the foregoing amounts payable by the Company from any Additional Payments, prior to be depositeddistribution to the Equityholders in accordance with Section 2.13.
(c) Promptly following the Closing Date, the Exchange Agent shall, with the Paying reasonable assistance of the Equityholder Representative, as promptly as practical after receipt of any customary documents that the Exchange Agent cash sufficient may reasonably require, make an electronic book entry for the applicable number of Parent Merger Shares due to pay the aggregate Merger Consideration payable an Equityholder, if any, in each case, pursuant to Section 3.03(a) (together with the amount deposited pursuant 2.06. No interest shall be paid or shall accrue on any cash, stock or other consideration payable or issuable hereunder. Each Certificate that prior to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose Effective Time represented shares of Common Stock or Preferred Stock (other than to pay the Offer Price in the Offer Dissenting Shares) shall be deemed from and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration for all purposes, to which be cancelled and any such holder Certificate shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment not evidence any right to receive any portion of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent consideration under Section 2.06 and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable Section 2.12. If after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, any Certificate is presented to the Company, the Paying Exchange Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the no Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, consideration shall become entitled pursuant to Section 3.03(a)be exchanged therefor.
(iiid) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit If any portion of the holder thereof. Until exchanged as contemplated by this applicable consideration under Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration 2.06 is to be made paid to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books and records of the CompanyCompany at the Effective Time, it shall be a condition of to such payment that (i) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser payable and (ii) the Exchange Agent may require the Person or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancesuch Person’s purported representatives to furnish supporting documentation evidencing such Person’s or representative’s authority to act and/or to furnish a medallion signature guarantee.
(ce) All Promptly following the date of this Agreement, the Company shall deliver to each Optionholder any required notices regarding the Merger Consideration paid and Agreement to Exercise Option in substantially the form attached hereto as Exhibit E (an “Option Exercise Agreement”). Each Option that is not exercised prior to the Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Option Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(d) and in accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(f) Promptly following the date of this Agreement, the Company shall deliver to each Warrantholder any required notices regarding the Merger and Agreement to Exercise Warrant in substantially the form attached hereto as Exhibit F (a “Warrant Exercise Agreement”). Each Warrant that is not exercised prior to the Effective Time shall be canceled without the payment of any consideration therefor. Promptly following the receipt by the Exchange Agent of the Parent Merger Shares, the Exchange Agent shall deliver to such holder who delivered to the Company a duly completed and executed Warrant Exercise Agreement prior to the Effective Time the portion of the Parent Merger Shares, if any, to which such Person is entitled pursuant to Section 2.06(b) and Section 2.06(e) and in accordance with the Parent Merger Shares Spreadsheet, for which Parent Merger Shares Parent will file a Registration Statement pursuant to Section 5.11.
(g) Any portion of the Parent Merger Shares that remains unclaimed six (6) months or more after the Effective Time (or, in the case of any payment of Additional Payments, six (6) months or more after the first payment of such amounts) shall be returned to the Equityholder Representative, upon demand, and any such Equityholder shall look only to the transfer Exchange Agent and the Equityholder Representative for payment of Shares the applicable consideration under Section 2.06; provided, that any funds payable from the Equityholder Representative Expense Fund shall be held and distributed to the Persons entitled thereto in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining this Agreement at the respective times and subject to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharescontingencies specified herein and therein.
(dh) Any portion of the Merger Consideration applicable consideration under Section 2.06 made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and in respect of any interest or other income earned thereon) that remains unclaimed by the holders of Dissenting Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for .
(i) Notwithstanding anything to the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingcontrary contained here, Parent and the Surviving Corporation and their Affiliates shall not be liable to any holder of Shares Certificates for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders any Equityholder two (2) years after the Effective Time (or, in the case of Shares Additional Payments, if any, two (2) years after the first payment of such amounts) (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto. The Exchange Agent shall deliver any such funds to Parent within fifteen (15) Business Days after the applicable two (2)-year anniversary by wire transfer or immediately available funds.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall will appoint a bank or trust company an exchange agent reasonably acceptable to act as agent OUTD (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging OUTD Certificates for OUTD Merger Consideration. As soon as reasonably practicable after the Effective Time, but in no event more than two Business Days following the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of No Election Shares as of the Effective Time, whose shares of OUTD Common Stock were converted into the right to receive the OUTD Merger Consideration, a letter of transmittal (which will specify that the delivery will be effected, and risk of loss and title will pass, only upon proper delivery of the OUTD Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent) in such form as Parent and OUTD may reasonably agree, including instructions for use in effecting the surrender of OUTD Certificates (or effective affidavits of loss in lieu thereof) to the Exchange Agent in exchange for the OUTD Merger Consideration Consideration.
(b) At or prior to the Shares Effective Time, Parent will cause to be deposited with the Exchange Agent, in trust for the benefit of the holders of shares of OUTD Common Stock, shares of Parent Common Stock and an amount of cash sufficient to be issued and paid in lieu of fractional shares pursuant to Section 3.03(a2.11 and pursuant to Section 2.1 and Section 2.2, payable upon due surrender of the OUTD Certificates (or effective affidavits of loss in lieu thereof) pursuant to the provisions of this Article II. Following the Effective Time, Parent will make available to the Exchange Agent, when and as needed, cash sufficient to pay any dividends and other distributions pursuant to Section 2.4(g). Promptly All cash and book-entry shares representing shares of Parent Common Stock deposited with the Exchange Agent are referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions, deliver the appropriate OUTD Merger Consideration out of the Exchange Fund. The Exchange Fund will not be used for any other purpose. The Exchange Agent will invest any cash included in the Exchange Fund as directed by Parent; provided, that no such investment or losses thereon will affect the OUTD Merger Consideration payable to holders of shares of OUTD Common Stock entitled to receive such consideration or cash in lieu of fractional interests and Parent will promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of shares of OUTD Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments will be the property of, and paid to, Parent.
(c) Each holder of shares of OUTD Common Stock that have been converted into the right to receive the OUTD Merger Consideration, upon surrender to the Exchange Agent of an OUTD Certificate (or effective affidavits of loss in lieu thereof), together with a properly completed letter of transmittal, duly executed and completed in accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, will be entitled to receive in exchange therefor (i) the number of shares of Parent Common Stock representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive and/or (ii) a check in the amount, if any, that such holder has the right to receive in cash, including cash payable in lieu of fractional shares payable pursuant to Section 2.11 and any dividends and other distributions payable pursuant to Section 2.4(g), pursuant to Section 2.1, Section 2.2 and this Article II. The OUTD Merger Consideration will be paid as promptly as practicable (by mail or, to the extent commercially practicable, made available for collection by hand if so elected by the surrendering holder of an OUTD Certificate) after (receipt by the Exchange Agent of the OUTD Certificate and letter of transmittal in accordance with the foregoing, and in any event no later than three Business Days following the first Business Day afterlater to occur of (i) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent Exchange Agent’s receipt of the OUTD Certificate and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender letter of Shares held of record by DTC or its nominees transmittal in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) foregoing. No interest shall accrue or will be paid or accrued on the any OUTD Merger Consideration Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)OUTD Certificates.
(ivd) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares OUTD Certificate is registered on the stock transfer books of the Companyregistered, it shall will be a condition of such payment that the Person requesting such payment shall have paid all will pay any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered OUTD Certificate or shall have established will establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe OUTD Merger Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered OUTD Certificate is registered, Purchaser it will be a condition to the registration thereof that the surrendered OUTD Certificate will be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the OUTD Merger Consideration will pay to the Exchange Agent any transfer or other similar Taxes described required as a result of such registration in this Section 3.04(b)(iv) under any circumstancethe name of a Person other than the registered holder of such OUTD Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(ce) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall will be no further registration of transfers of Sharesshares of OUTD Common Stock. From and after the Effective Time, the holders of OUTD Certificates representing shares of OUTD Common Stock outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of OUTD Common Stock except as otherwise provided in this Agreement or by applicable Law. If, after the Effective Time, OUTD Certificates are presented to the Exchange Agent or Parent, they will be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth in this Article II. Notwithstanding anything to the contrary contained in this Agreement, the OUTD Surviving Corporation is obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by OUTD on shares of OUTD Common Stock in accordance with the terms of this Agreement prior to the date hereof and which remain unpaid at the Effective Time.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of OUTD Common Stock one year after the Effective Time shall will be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his or her shares of OUTD Common Stock for the OUTD Merger Consideration in accordance with this Section 3.04 Article II prior to that time shall will thereafter look only to Parent for payment delivery of the OUTD Merger Consideration in respect of such Shares without any interest thereonholder’s shares of OUTD Common Stock. Notwithstanding the foregoing, Parent shall not none of Parent, IM, IM Merger Sub, OUTD Merger Sub, the OUTD Surviving Corporation or OUTD will be liable to any holder of Shares shares of OUTD Common Stock for any amount paid OUTD Merger Consideration delivered to a public official pursuant to applicable abandoned property, escheat or similar lawsproperty Laws. Any amounts OUTD Merger Consideration remaining unclaimed by holders of Shares shares of OUTD Common Stock immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomewill, to the extent permitted by Applicable Lawapplicable Laws, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) No dividends or other distributions with respect to shares of Parent Common Stock issued in the OUTD Merger will be paid to the holder of any unsurrendered OUTD Certificates until such OUTD Certificates are surrendered as provided in this
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company and Parent (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for (i) the Shares pursuant Certificates or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(ain respect of all of the shares of Company Common Stock (“Shares”) represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. The Exchange Agent shall invest the Payment Fund as directed by Parent; provided, that such investments shall be in obligations of or guaranteed by the United States of America or in commercial paper obligations rated “A-1” or “P-1” or better by M▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or a combination of the foregoing and, in any such case, no such instrument shall have a maturity exceeding three (3) months. Any interest and other income resulting from such investments shall be paid to, or as directed by, Parent. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 3.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of Shares for the Merger Consideration Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries Entry Shares. Until so surrendered or transferred, as the case may be, and subject to ensure that the Paying Agent will transmit to DTC terms set forth in Section 3.03, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon written demand.
Appears in 1 contract
Sources: Merger Agreement (Lca Vision Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration the Shares pursuant to as provided in Section 3.03(a1.2(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit with and make available to (or shall cause to be deposited, deposited with and made available to) the Paying Exchange Agent cash sufficient to pay the aggregate full Merger Consideration payable pursuant to as provided in Section 3.03(a1.2(a) in respect of shares of Company Common Stock, but not any Merger Consideration in respect of any Dissenting Shares as of the Effective Time (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Exchange Fund”). The Payment If, for any reason (including losses) the Exchange Fund is inadequate to pay the Merger Consideration as provided in Section 1.2(a) in respect of the shares of Company Common Stock (excluding any Merger Consideration in respect of any Dissenting Shares as of the Effective Time), Parent shall not take all steps necessary to enable or cause the Surviving Corporation promptly to deposit with and make available to the Exchange Agent additional cash sufficient to pay all such amounts, and Parent and the Surviving Corporation shall in any event be liable for the timely payment thereof. All cash deposited with the Exchange Agent shall only be used for any purpose the purposes provided in this Agreement. Any income from investment of the Exchange Fund will be payable to the Surviving Corporation. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall cause the Exchange Agent to send to each holder of shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary or any Subsidiary of the Company or Parent) a letter of transmittal, in form and substance reasonably acceptable to pay the Offer Price Company, and instructions for use in such exchange (which shall specify that the Offer delivery shall be effected, and risk of loss and title shall pass, only upon transfer of the Merger Consideration shares of Company Common Stock to holders of Shares in the MergerExchange Agent).
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Consideration shall be entitled to receive, and Parent shall cause upon receipt of an “agent’s message” by the Paying Exchange Agent to pay and deliver (or such other evidence, if any, of transfer as promptly as possible after the Effective TimeExchange Agent may reasonably request), the Merger Consideration to which in respect of such holder shall become entitled pursuant Section 3.03(a), and holder’s shares of Company Common Stock. Until the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with in respect to of a given share of Company Common Stock has been paid, such Shares share of Company Common Stock shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable represent after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and Time for all purposes only the right to receive such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) Consideration. No interest shall accrue or dividends will be paid or accrue on the any Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit shares of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Company Common Stock.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares a transferred share of Company Common Stock is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such share of Company Common Stock shall be properly transferred and (ii) the Person requesting such payment shall have paid all pay in advance to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such share of Company Common Stock or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At or after the Effective Time, the transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers of Shares.shares of Company Common Stock. If, after the Effective Time, shares of Company Common Stock are presented to the Surviving Corporation or the Exchange Agent, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article I.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon1.3(a) that remains unclaimed by the holders of Shares twelve months shares of Company Common Stock one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 1.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration Consideration, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) The agreement with the Exchange Agent shall provide that the Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve Parent or the Exchange Agent from making the payments required by this Article I, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as directed by ▇▇▇▇▇▇. To the extent that (i) there are any losses with respect to any investments of the Exchange Fund; (ii) the Exchange Fund diminishes for any reason below the level required for the Exchange Agent to promptly pay the cash amounts contemplated by Section 1.2; or (iii) all or any portion of the Exchange Fund is unavailable for Parent (or the Exchange Agent on behalf of Parent) to promptly pay the cash amounts contemplated by Section 1.2 for any reason, Parent shall, or shall cause the Surviving Corporation to, promptly replace or restore the amount of cash in the Exchange Fund so as to ensure that the Exchange Fund is at all times fully available for distribution and maintained at a level sufficient for the Exchange Agent to make the payments contemplated by Section 1.2.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (SolarWinds Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Disbursing Agent”) for the purpose payment of exchanging for the Merger Consideration upon (i) surrender of certificates representing the Shares pursuant or (ii) transfer of book-entry shares which immediately prior to Section 3.03(athe Effective Time represented Shares (the “Book-Entry Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, will enter into a disbursing agent agreement with the Depository Agent cash sufficient Disbursing Agent, and, at or prior to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Paying Disbursing Agent cash sufficient in an aggregate amount necessary to pay make the aggregate Merger Consideration payable payments pursuant to Section 3.03(a3.1(b) to holders of Shares (together with the amount deposited pursuant such amounts being hereinafter referred to the immediately preceding sentence, as the “Payment Exchange Fund”). For purposes of determining the amount to be so deposited, Merger Subsidiary shall assume that no stockholder of the Company will perfect any right to appraisal of his, her or its Shares. The Payment Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided, that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Services, Inc. or Standard & Poor’s Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.1(b). Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.1(b) shall be promptly paid to Parent. Parent shall promptly replenish the Exchange Fund to the extent of any investment losses. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause instruct the Paying Disbursing Agent to pay and deliver as mail promptly as possible after the Effective Time, but in no event later than the tenth (10th) Business Day thereafter, to each Person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the “Certificates”) or Book-Entry Shares, and whose Shares were converted into the right to receive Merger Consideration pursuant to Section 3.1(b), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent) and instructions for use in effecting the surrender of the Certificates or transfer of Book-Entry Shares in exchange for payment of the Merger Consideration Consideration. Upon (i) surrender of a Certificate to which the Disbursing Agent for cancellation, together with such holder shall become entitled pursuant Section 3.03(aletter of transmittal duly executed and such other documents as may be reasonably required by the Disbursing Agent, or (ii) receipt of an “agents message” by the Disbursing Agent (or such other evidence, if any, of transfer as the Disbursing Agent may reasonably request), and in the Shares so exchanged shall be forthwith canceled. Payment case of Book-Entry Shares, the applicable Merger Consideration with respect to holder of such Certificate or Book-Entry Shares shall be made only entitled to the Person receive in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on exchange therefor the Merger Consideration payable to holders in respect of such Certificate or Book-Entry Shares, less any required withholding of Taxes, and such Certificate or Book-Entry Shares in accordance with this Section 3.04(b) for shall forthwith be canceled. No interest will be paid or accrued on the benefit cash payable upon the surrender of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) Certificates or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after transfer of the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Book-Entry Shares.
(ivc) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the Certificate or Book-Entry Shares surrendered Shares or transferred is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Certificate or Book-Entry Shares so surrendered or transferred be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all pay any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate or Book-Entry Shares surrendered, surrendered or shall have established transferred or establish to the satisfaction of the Surviving Corporation that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(cd) All Until surrendered or transferred, as applicable, in accordance with the provisions of this Section 3.2, all Certificates and Book-Entry Shares (other than Certificates and Book-Entry Shares representing Shares owned by Parent or any of its wholly-owned Subsidiaries, Shares held by the Company or any wholly-owned subsidiary of the Company and Dissenting Shares) shall represent for all purposes, from and after the Effective Time, only the right to receive the applicable Merger Consideration.
(e) At and after the Effective Time, there shall be no registration or transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the surrender of Certificates or transfer of Book-Entry Shares in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such Certificates or Book-Entry Shares. After If, after the Effective Time, there Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, such Certificates or Book-Entry Shares shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time, the stock ledger of the Company shall be no further registration of transfers of Sharesclosed.
(df) Any portion At any time more than six (6) months after the Effective Time, the Disbursing Agent shall upon demand of the Merger Consideration Parent deliver to it any funds which had been made available to the Paying Disbursing Agent pursuant to Section 3.04(a) and not disbursed in exchange for Certificates or Book-Entry Shares (including all interest and any interest or other income earned thereon) that remains unclaimed received by the Disbursing Agent in respect of all such funds). Thereafter, holders of Certificates or Book-Entry Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingthis Agreement, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Certificates or similar lawstransfer of the Book-Entry Shares held by them. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the such amounts would otherwise escheat to or become the property of any Governmental Authority shall becomegovernmental unit or agency, shall, to the extent permitted by Applicable applicable Law, become the property of Parent the Surviving Corporation, free and clear of any all claims or interest of any Person previously entitled thereto. Notwithstanding the preceding provisions of this Section 3.2, none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall be liable to any holder of a Certificate or Book-Entry Shares for any Merger Consideration delivered in respect of such Certificate or Book-Entry Shares to a public official pursuant to any abandoned property, escheat or other similar Law.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank American Stock Transfer & Trust Company as the exchange agent (or trust company such other nationally recognized exchange agent agreed to between the parties) (the “Exchange Agent”) to act as agent (for the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that Company’s stockholders who shall become entitled to receive the aggregate Offer Price funds pursuant to Section 2.01(d) and this Agreement, including as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration Consideration, certificates representing shares of Company Common Stock (the Shares pursuant 15 “Certificates;” provided, however, that any references herein to Section 3.03(a“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Exchange Agent cash sufficient to pay the aggregate Aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
purpose. The Surviving Corporation shall (b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to Surviving Corporation to) pay all charges and deliver as promptly as possible after expenses, including those of the Effective TimeExchange Agent, in connection with the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), exchange of shares of Company Common Stock and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without shares. Promptly after the Effective Time, and in any interest thereon. Notwithstanding event no later than three (3) Business Days after the foregoingEffective Time, Parent shall not be liable send, or shall cause the Exchange Agent to any send, to each record holder of Shares for any amount paid shares of Company Common Stock at the Effective Time whose shares were converted into the right to a public official receive the Merger Consideration pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders Section 2.03(a) a letter of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, transmittal and instructions in forms reasonably satisfactory to the extent permitted Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent for use in such exchange. 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 shares of Company Common Stock represented by Applicable Lawa Certificate, promptly, upon (i) surrender to the property Exchange Agent of Parent free a Certificate, together with a duly completed and clear validly executed letter of any claims transmittal and such other documents as may reasonably be requested by the Exchange Agent, or interest (ii) receipt of any Person previously entitled thereto.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 shares of Company Common Stock, and, in each case, delivery to the Exchange Agent of such other documents as may reasonably be requested by the Exchange Agent. Until so surrendered or transferred, each such Certificate shall represent after the Effective Time for all purposes only the right to receive such Merger
Appears in 1 contract
Sources: Merger Agreement (Lionbridge Technologies Inc /De/)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank Computershare Trust Company, N.A. as the exchange agent (or trust company such other nationally recognized exchange agent agreed to act as agent between the parties hereto) (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration certificates representing shares of Company Common Stock (the Shares “Certificates”); provided, however, that any references herein to “Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock. At or prior to the Effective Time, and except with respect to per share Merger Consideration payable pursuant to Company Restricted Stock Awards (which are governed by Section 3.03(a2.06(b). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date), Parent shall deposit, or shall cause to be deposited, with the Depository Exchange Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate per share Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than 30 days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation, as directed by Parent. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Merger Consideration to holders in respect of Shares in the Mergersuch shares of Company Common Stock.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible Promptly after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable any event no later than three Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) (other than shares of Company Common Stock subject to Company Restricted Stock Awards) a letter of transmittal and instructions in forms reasonably satisfactory to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.08) to the Exchange Agent) for use in such exchange. Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration (other than shares of Company Common Stock subject to Company Restricted Stock Awards) shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate promptly upon (i) surrender to the Exchange Agent of Shares held a Certificate, together with a duly completed and validly executed letter of record by DTC or its nominees in accordance with DTC’s customary surrender procedures transmittal and such other procedures documents as agreed may reasonably be requested by Parent, the Company, the Paying Exchange Agent, DTC, DTCor (ii) receipt of an “agent’s nominees and message” by the Exchange Agent (or such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-party intermediariesentry transfer of shares of Company Common Stock, and, in each case, delivery to the Merger Consideration to which the beneficial owners Exchange Agent of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or other documents as may reasonably be paid on requested by the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofExchange Agent. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the applicable Merger Consideration as contemplated by Section 3.03(a)cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration as provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock 12 months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Merger Consideration in respect of such Shares Consideration, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of Shares immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as paying agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) to act as the agent for the purpose of exchanging for payment of the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, will enter into a paying agent agreement with the Depository Paying Agent cash sufficient prior to make the payment of the aggregate Offer Price payable pursuant Closing Date. At or prior to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit in trust, with the Paying Agent Agent, sufficient cash sufficient in U.S. dollars to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash in U.S. dollars with the Paying Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. Parent or the Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Paying Agent, in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action connection with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known . As promptly as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon reasonably practicable after the Effective TimeTime and in any event no later than the third (3rd) Business Day following the Closing, be entitled to receiveParent shall send, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Paying Agent) for use in such exchange; provided that, with respect to any holder of Company Common Stock whose shares were converted into Merger Consideration pursuant to Section 2.01(b) and who appears at the Closing in person or by authorized representative, the Paying Agent shall provide the letter of transmittal and instructions for use to such holder at the Closing.
(b) Each holder of shares of Company Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to which such holder shall become entitled pursuant Section 3.03(areceive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share as promptly as reasonably practicable upon (i) surrender to the Paying Agent of a Certificate (or effective affidavits of loss in lieu thereof), together with a duly completed and the Shares so exchanged shall validly executed letter of transmittal and such other documents as may reasonably be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with requested by the Paying Agent, DTC, DTCor (ii) receipt of an “agent’s nominees and such other necessary third-party intermediaries to ensure that message” by the Paying Agent will transmit to DTC (or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures evidence, if any, of transfer as agreed by Parent, the Company, the Paying AgentAgent may reasonably request) in the case of Book-Entry Shares. Until so surrendered or transferred, DTCas the case may be, DTC’s nominees and subject to the terms set forth in Section 2.03, each such other necessary thirdCertificate or Book-party intermediariesEntry Share, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCas applicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates (or effective affidavits of loss in lieu thereof) or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent none of the Company, Parent, Merger Sub, the Surviving Corporation, the Paying Agent or any other Person shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) The Paying Agent shall invest all cash included in the Payment Fund as reasonably directed by Parent; provided, however, that any investment of such cash shall be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government. Any interest and other income resulting from such investments shall be paid to Parent pursuant to Section 2.02(e). Nothing contained herein and no investment losses resulting from investment of the Payment Fund shall diminish the rights of any holder of Certificates or Book-Entry Shares to receive the Merger Consideration as provided herein.
Appears in 1 contract
Sources: Merger Agreement (Edgen Group Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares pursuant to Section 3.03(a(the “Uncertificated Shares”). Promptly after (The Company and in any event no later than Parent shall enter into a paying agent agreement with the first Business Day after) Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Company and Parent prior to the Acceptance DateTime. On the date of the Closing, Parent shall deposit, deposit with the Paying Agent (or shall cause the Company to be deposited, deposit with the Depository Agent Paying Agent), cash sufficient to make the payment of pay the aggregate Offer Price payable pursuant to Section 2.01(d2.01(e) and the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (such cash, the “Consideration Fund”). As In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(g)), Parent shall promptly deliver, or cause to be delivered (including by causing the Surviving Corporation, following the Effective Time, Parent shall depositto deliver), or shall cause additional funds to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the in an amount deposited pursuant that is equal to the immediately preceding sentence, deficiency required to make such payments. Promptly after the “Payment Fund”). The Payment Fund shall not be used for Effective Time (and in any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
event within three (b3) Except as provided in this Section 3.04(b), at Business Days after the Effective Time), holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agentshall send, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each holder of Shares at the Effective Time (other than Parent or Merger Sub), a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, with the form and substance of such letter of transmittal and instructions to be reasonably agreed to by Parent and the Company and prepared prior to the Acceptance Time.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration to which payable for each such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Share represented by such Shares shall be made only to the Person in whose name Certificate or for each such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any such Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States of America with maturities of no more than three (3) months or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a) and shall be paid upon as it directs. No investment of the transfer Consideration Fund shall relieve any Person from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall promptly provide (or shall cause the Company to promptly provide following the Effective Time) additional cash funds to the Paying Agent for the benefit of Shares the Company’s stockholders in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(e) From and after the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months that have been converted into the right to receive the Merger Consideration one year after the Effective Time Time, to the extent permitted by Applicable Law, shall be returned to Parentthe party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a), upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 3.03 prior to that time shall thereafter look only to Parent for payment such party only as general creditors of such party with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and subject to any withholding of Taxes required by Applicable Law in respect of such Shares without any interest thereonaccordance with Section 3.08. Notwithstanding the foregoing, Parent neither Parent, the Company nor any of their Affiliates shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares that have been converted into the right to receive the Merger Consideration two (2) years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Company, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to the party that made available to the Paying Agent the related cash in the Consideration Fund pursuant to Section 3.03(a), upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent U.S. Bank National Association (the “Paying Agent”) for to act as paying agent in connection with the purpose of exchanging for consideration to be paid to the Merger Consideration the Shares Stockholders pursuant to Section 3.03(a). Promptly after (a paying agent agreement among Parent, Representative and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) in reasonable form and substance (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment FundPaying Agent Agreement”). The Payment Fund Paying Agent’s fees and expenses shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerborne by Parent.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect At least three (3) Business Days prior to the exchange Closing Date, Company shall deliver to Parent its good faith estimate of their Shares for the Closing Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) Consideration (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Estimated Closing Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTCConsideration”), Parent and including reasonable support for its calculation of the Company Estimated Closing Merger Consideration. The calculation of the Estimated Closing Merger Consideration shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees be prepared in accordance with DTCGAAP applied on a basis consistent with Company’s customary surrender procedures and such other procedures as agreed by Parent, past practices used in preparing the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceFinancial Statements.
(c) All Merger Consideration paid upon No later than three (3) Business Days following the transfer date hereof, Company shall deliver, or cause to be delivered, a Letter of Shares Transmittal in accordance with a form reasonably acceptable to Parent and Company (collectively, the terms hereof shall be deemed to have been paid in full satisfaction “Letters of all rights pertaining Transmittal”) to the Shares formerly represented by Preferred Stockholders. In the event that at any time the sum of the Preferred Stockholder Allocated Amounts exceeds the Aggregate Liquidation Preference Amount, then concurrently with or prior to the distribution to Preferred Stockholders resulting in such Shares. After the Effective Timeevent, there Surviving Company shall deliver, or cause to be no further registration delivered, a Letter of transfers Transmittal to each holder of SharesCompany Common Stock that has not executed a Letter of Transmittal along with a letter explaining that such threshold has been exceeded.
(d) Any portion Company shall deliver to Parent, at least three (3) Business Days prior to the Closing Date, a distribution schedule (the “Distribution Schedule”), setting forth Company’s calculation of how the Aggregate Merger Consideration shall be allocated among the Stockholders, in addition to an electronic copy thereof in Microsoft Excel format. Parent shall be able to rely on, and shall have no liability to any party to this Agreement or to any Stockholder for any payment reflected on, the Distribution Schedule. The Distribution Schedule shall include:
(i) the name, address (as listed in the corporate record books of Company) and, the extent provided by such Stockholder in a Letter of Transmittal, the social security number or tax identification number of each Stockholder;
(ii) the Aggregate Liquidation Preference Amount;
(iii) each Preferred Stockholder’s Proportionate Share, and each Common Stockholder’s Proportionate Share;
(iv) the Company Board’s good faith determination, with the written consent of holders of at least two-thirds of the then outstanding shares of the Senior Preferred, of the value of each component of the Aggregate Merger Consideration made available as of the Effective Time;
(v) the Preferred Per Share Merger Consideration for each series of Company Preferred Stock and the Common Per Share Merger Consideration for the Company Common Stock;
(vi) the allocation of the Aggregate Merger Consideration among the Stockholders, determined in accordance with the Company Charter as in effect as of immediately prior to the Paying Agent Effective Time, including the allocation of any Closing Cash Consideration and the number of Parent Shares issuable to each Stockholder pursuant to Section 3.04(a1.4 and Section 1.5(e);
(vii) (and a schedule of MIP Payments to be made at the Closing, as well as a schedule setting forth the allocation of any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to ParentEscrow Distributions, upon demandReserve Distributions, and any such holder who has not exchanged such Shares Earnout Payments payable to Participants as MIP Payments;
(viii) the number of shares (separated by class and series) of Company Stock; and
(ix) certificate prefix(es) and certificate number(s) for Company Stock.
(e) At the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingClosing, Parent shall not deliver or pay, or shall cause the Surviving Company to deliver or pay, in cash by wire transfer of immediately available funds, the balance of amounts of the Indebtedness identified on the “Indebtedness Pay-Off Schedule” and outstanding Stockholder Transaction Expenses identified on the “Stockholder Transaction Expenses Schedule”, each delivered to Parent by Company at least three (3) Business Days prior to the Closing Date, as follows:
(i) all amounts necessary to fully discharge the then-outstanding balances of the Indebtedness identified on the Indebtedness Pay-Off Schedule shall be liable paid on behalf of Company to the applicable creditors’ accounts set forth in the Pay-Off Letters or as otherwise advised by such creditors in writing; and
(ii) all amounts necessary to fully discharge the then-outstanding balances of Stockholder Transaction Expenses identified on the Stockholder Transaction Expenses Schedule shall be paid on behalf of Company to the accounts designated by the Persons owed such amounts as set forth on the Stockholder Transaction Expenses Schedule.
(f) Each Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration shall be paid in a number of Parent Shares (rounded up to the nearest share) equal to such Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration divided by the Parent Trading Price at Signing (the “Parent Share Consideration”); provided that in the event that the aggregate of the Accredited Stockholders’ Proportionate Shares of the Closing Merger Consideration, plus the Escrow Shares, plus the amount of any holder MIP Payments paid in Parent Shares at the Closing, exceeds $34,000,000, then the amount of Shares for such excess shall be paid in cash; provided that the aggregate of the non-Accredited Stockholders’ Proportionate Share of the Closing Merger Consideration shall be equal to or less than $3,400,000. Each non-Accredited Stockholder’s Proportionate Share of the Closing Merger Consideration shall be paid in cash (together with any amount paid cash consideration payable to a public official the Accredited Stockholders pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Lawthis clause, the property of “Closing Cash Consideration”). “Parent free and clear of any claims or interest of any Person previously entitled theretoTrading Price at Signing” means $15.99.
Appears in 1 contract
Sources: Merger Agreement (AtriCure, Inc.)
Surrender and Payment. (a) Prior to the Acceptance Date, Effective Time Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent Paying Agent in the Merger (the “Depository "Paying Agent”") for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each case, other than the Cancelled Shares, restricted shares pursuant to Section 2.01(d)a Company Restricted Stock Award and except for any Dissenting Shares. As of Prior to the Effective Time, Parent shall deposit, deposit or shall cause to be deposited, deposited (i) with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable required to be paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the "Exchange Fund"), and (ii) with the Company, cash in an amount sufficient such that the Company has sufficient cash on hand to pay the aggregate Option Consideration and RS/RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the "Compensatory Award Fund"). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional cash with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required pay the Merger Consideration, the Option Consideration or the RS/RSU Consideration, as applicable. The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.03(a3.01 out of the Exchange Fund. The Surviving Corporation or an Acquired Company, as applicable, shall pay through payroll (subject to withholding and deductions required by Applicable Law) (together with the amount deposited Option Consideration and RS/RSU Consideration contemplated to be paid pursuant to Section 3.05 out of the immediately preceding sentence, the “Payment Compensatory Award Fund”). The Payment Exchange Fund and the Compensatory Award Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will cause the Paying Agent to send to each holder of Shares shall not be required to take any action with respect record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, in exchange of their Shares for the Merger ConsiderationConsideration in such form as Parent and the Company may reasonably agree.
(ic) Any Upon the surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate or Book-Entry Share shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within two (2) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates or Book-Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the applicable Company, payment of the appropriate amount of Merger Consideration with respect to such Shares shall may be made only to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered is registered, if such Shares are registeredCertificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share shall be properly transferred, and the Person requesting such payment shall pay, or cause to be paid, any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of such Certificate or Book-Entry Share or establish to the satisfaction of Parent that such Tax has been paid or is not applicable. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.
(iid) With respect Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Agent and the Depository Trust Company ("DTC, DTC’s nominees and such other necessary third-party intermediaries ") to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time on the Closing Date, the Paying Agent will transmit to DTC or its nominees as promptly as practicable after on the Effective Time, upon surrender Closing Date an amount in cash in immediately available funds equal to the number of Shares shares of Company Common Stock held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed nominee immediately prior to the Effective Time multiplied by Parentthe Merger Consideration (such amount, the Company"DTC Payment"), and (ii) if the Closing occurs after 2:00 p.m. Eastern time on the Closing Date, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration Agent will transmit to which the beneficial owners of such Shares held, directly DTC or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid its nominee on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(bfirst (1st) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time Business Day after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person Closing Date an amount in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established cash in immediately available funds equal to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceDTC Payment.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior At or prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall will deposit, or shall cause to be deposited, with a bank or trust company reasonably acceptable to the Depository Agent cash sufficient Company and appointed by Parent to make the payment of the aggregate Offer Price payable act as a paying agent pursuant to Section 2.01(d). As of this Agreement (the Effective Time, Parent shall deposit, or shall cause to be deposited, with the “Paying Agent ”), in trust for the benefit of holders of shares of Common Stock and Non-Employee Company Equity Award Holders, cash in United States dollars sufficient to pay the aggregate Merger Consideration payable pursuant in exchange for all of the shares of Common Stock or Cash-Out Company Equity Awards held by Non-Employee Company Equity Award Holders, in each case, that are outstanding immediately prior to Section 3.03(athe Effective Time (other than the Excluded Shares, Converted Shares and Dissenting Shares) (together with the amount deposited pursuant such cash being referred to the immediately preceding sentence, as the “Payment Fund”). If the Payment Fund is insufficient for any reason to make the payments contemplated by Section 2.6(a) (including the applicable payments to Non-Employee Company Equity Award Holders contemplated by Section 2.7), Parent will, or will cause Merger Sub or the Surviving Corporation to, promptly deposit additional funds with the Paying Agent in an amount sufficient to make such payments. The Payment Fund shall will not be used for any purpose other than to pay the Offer Price as expressly provided for in the Offer and the Merger Consideration to holders of Shares in the Mergerthis Agreement.
(b) Except As promptly as provided in this Section 3.04(b), at practicable after the Effective Time, holders and in no event later than the fifth Business Day thereafter, Parent will cause the Paying Agent to mail to each holder of record of a Certificate representing shares of Common Stock, a letter of transmittal, which will specify that delivery will be effected, and risk of loss and title will pass, only upon delivery of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) to the Paying Agent, and will be in such form and have such other instructions and provisions as are reasonably acceptable to Parent and the Company, including instructions for use in effecting the surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) in exchange for the portion of the Merger Consideration payable in respect thereof.
(c) Upon surrender of Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) to the Paying Agent in accordance with the letter of transmittal described in Section 3.1(b), together with, if applicable, such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may customarily be required by the Paying Agent, the holder of such Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) will be entitled to receive from the Payment Fund in exchange therefor an amount in cash equal to the product of (i) the number of shares represented by such holder’s properly surrendered Certificates (or affidavits of loss in lieu thereof as provided in Section 3.2) and (ii) the Per Share Merger Consideration (less any applicable withholding Taxes). Notwithstanding anything to the contrary contained in this Agreement, no holder of Book-Entry Shares shall not be required to take any action with respect deliver a Certificate or letter of transmittal or to surrender such Book-Entry Shares to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentPaying Agent. In lieu thereof, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, each Book-Entry Share shall automatically upon the Effective Time, Time be entitled to receive, and Parent shall use its reasonable best efforts to cause the Paying Agent to pay and deliver the holder of such Book-Entry Share from the Payment Fund in exchange therefor as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as reasonably practicable after the Effective Time, an amount in cash equal to the product of (A) the number of shares represented by such holder’s Book-Entry Shares and (B) the Per Share Merger Consideration (less any applicable withholding Taxes). No interest will be paid or accrued on any amount payable upon due surrender of Shares held Certificates (or affidavits of record by DTC loss in lieu thereof as provided in Section 3.2) or its nominees in accordance respect of Book-Entry Shares. In addition, with DTC’s customary surrender procedures respect to Non-Employee Company Equity Award Holders in respect of the corresponding Cash-Out Company Equity Awards, the Non-Employee Company Equity Award Holders shall be entitled to receive in exchange therefor (as promptly as practicable) the amount as set forth in Section 2.7(a) through Section 2.7(f), as applicable, and such other procedures as agreed by ParentCash-Out Company Equity Awards shall, at the CompanyEffective Time, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a)be cancelled.
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(ivd) If the any payment of any Merger Consideration is to be made to a Person other than the Person in whose name the a surrendered Certificate or Book-Entry Shares is registered on the stock transfer books of the Companyregistered, it shall will be a condition of such payment that the Person requesting such payment shall have paid all will pay any transfer and or other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the surrendered Certificate or Book-Entry Shares surrendered, or shall have established will establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(ce) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall will be no further registration of transfers of Sharesshares of Common Stock outstanding immediately prior to the Effective Time and the stock transfer books of the Company shall be closed with respect to all shares of Common Stock outstanding immediately prior to the Effective Time. From and after the Effective Time, the holders of Certificates and Book-Entry Shares outstanding immediately prior to the Effective Time will cease to have any rights with respect to such shares of Common Stock except as otherwise provided in this Agreement or by applicable Law. Notwithstanding anything to the contrary contained in this Agreement, the Surviving Corporation will be obligated to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by the Company with respect to shares of Common Stock prior to the date of this Agreement and which remain unpaid at the Effective Time, provided that nothing in this Section 3.1(e) shall be construed to permit the Company to take any action with respect to any Securities that is prohibited by this Agreement.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Common Stock 48 months after the Effective Time shall will be returned to Parent, upon demand, and any such holder who has not exchanged such Shares holder’s shares of Common Stock for the Per Share Merger Consideration in accordance with this Section 3.04 Article III prior to that time shall will thereafter look only to Parent or the Surviving Corporation for payment delivery of the Per Share Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding holder’s shares of Common Stock.
(g) Neither Parent, the foregoing, Parent shall not Surviving Corporation nor the Paying Agent will be liable to any former holder of Shares Common Stock or any other Person for any amount paid portion of the Merger Consideration delivered to a public official any Governmental Authority pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of In the event any Certificates have not been surrendered or Book-Entry Shares immediately have not been paid prior to the date as of which the Merger Consideration payable in respect of such time when the amounts Certificates or Book-Entry Shares would otherwise escheat to or otherwise become the property of any Governmental Authority shall becomeAuthority, Parent, the Surviving Corporation and the Paying Agent will be permitted to comply with such Laws (including by, to the extent permitted by Applicable Lawsuch Laws, the treating such remaining payable Merger Consideration as property of Parent the Surviving Corporation, free and clear of any claims or interest Liens of any Person previously entitled thereto).
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration certificates representing Shares (the “Certificates”) or uncertificated Shares (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Company and Parent. Promptly after the Effective Time on the date of Closing, Parent shall make available to the Paying Agent, as needed, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Effective Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(a3.08(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event no later than within three Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each holder of Shares at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, the form and substance of such letter of transmittal and instructions shall be reasonably agreed to by Parent and the Company and prepared prior to the Closing.
(a) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Certificate or for each such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivb) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(c) All Merger The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than three months or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. Consideration Fund.
(d) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a3.08(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time Time, to the extent permitted by the TBOC, shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 3.08 prior to that time shall thereafter look only to Parent for payment only as general creditors of Parent with respect to the Merger Consideration that may be payable upon due surrender of the Certificates or Uncertificated Shares held by them, without interest and subject to any withholding of Taxes required by Applicable Law as provided in respect of such Shares without any interest thereonSection 3.12. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, the TBOC the property of Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.08(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
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Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company payment agent reasonably acceptable to the Company (the “Payment Agent”) to act as agent (for the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that Company’s stockholders who shall become entitled to receive the aggregate Offer Price funds pursuant to Section 2.01(d) and this Agreement, including as agent (the “Paying Agent”) for the purpose of exchanging surrendering, for the Per Share Merger Consideration Consideration, certificates representing shares of Company Common Stock (the Shares pursuant “Certificates;” provided, however, that any references herein to Section 3.03(a“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Payment Agent cash sufficient an amount equal to pay the aggregate Merger amount of the Aggregate Consideration payable (other than with respect to the portion of the Aggregate Consideration related to Company Equity Award that will be paid pursuant to Section 3.03(a2.04(g)) (together with the amount deposited required to be paid pursuant to the immediately preceding sentence, this Article 2 (the “Payment Fund”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Aggregate Consideration (other than with respect to the portion of the Aggregate Consideration related to Company Equity Awards that will be paid pursuant to Section 2.04(g)), Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Payment Agent as and to the extent directed by ▇▇▇▇▇▇; provided, however, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of the Aggregate Consideration payable hereunder, and following any losses Parent shall, or shall cause the Surviving Corporation to, promptly provide additional funds to the Payment Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund and shall be paid to the Surviving Corporation on the earlier of six (6) months after the Effective Time or the full payment of the Aggregate Consideration (other than with respect to the portion of the Aggregate Consideration related to Company Equity Awards that will be paid pursuant to Section 2.04(g)). The Payment Fund shall not be used for any purpose other than purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Payment Agent, in connection with the conversion of shares of Company Common Stock into the right to pay receive the Offer Price in the Offer and the Per Share Merger Consideration in respect of each of such shares. Promptly after the Effective Time, and in any event no later than two (2) Business Days after the Effective Time, Parent shall send, or shall cause the Payment Agent to holders send, to each record holder of Shares shares of Company Common Stock as of immediately prior to the Effective Time whose shares were converted into the right to receive the Per Share Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the MergerCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Payment Agent for use in such exchange).
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive the Per Share Merger Consideration in this Section 3.04(b)respect of each share of Company Common Stock represented by a Certificate, at the Effective Timepromptly, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
upon (i) Any holder surrender to the Payment Agent of Shares held in direct registry form through such Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Payment Agent, automatically upon or (ii) receipt of an “agent’s message” by the Effective TimePayment Agent (or such other evidence, if any, of transfer as the Payment Agent may reasonably request) in the case of a book-entry transfer of shares of Company Common Stock, and, in each case, delivery to the Payment Agent of such other documents as may reasonably be entitled to receiverequested by the Payment Agent. Until so surrendered or transferred, and Parent each such Certificate shall cause the Paying Agent to pay and deliver as promptly as possible represent after the Effective Time, Time for all purposes only the Merger Consideration right to which such holder shall become entitled pursuant Section 3.03(a), and receive the Shares so exchanged shall be forthwith canceled. Payment of the applicable Per Share Merger Consideration with respect to each share of Company Common Stock represented by such Shares Certificate. No interest shall be made only paid or accrued on the cash payable upon the surrender or transfer of such Certificate.
(c) If any portion of the Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such Shares are registeredpayment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall pay to the Payment Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the satisfaction of the Payment Agent that such Tax has been paid or is not payable.
(iid) With respect Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Payment Agent and the Depository Trust Company (“DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure ”) with the objective that the Paying Payment Agent will shall transmit to DTC or its nominees as nominee on or promptly as practicable after the Effective Time, upon surrender and in any event no later than two (2) Business Days after the Effective Time, an amount in cash, by wire transfer of Shares immediately available funds, equal to (i) the number of shares of Company Common Stock held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed nominee immediately prior to the Effective Time multiplied by Parent, (ii) the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Per Share Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a)Consideration.
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(ce) All Merger Consideration cash amounts properly paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration with respect to each share of Company Common Stock represented by such Certificate, in accordance with the procedures set forth in this Article 2.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six (6) months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Per Share Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Merger Consideration cash to which they are otherwise entitled in respect accordance with the procedures set forth in this Article 2, without interest. None of such Shares without any interest thereon. Notwithstanding Parent, the foregoing, Parent Surviving Corporation or the Payment Agent shall not be liable to any holder stockholder of Shares the Company for any amount paid cash amounts properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by Applicable Law.
(g) Notwithstanding anything in this Section 2.04 to the contrary, with respect to current and former employees of the Company and its Subsidiaries who hold outstanding Company Equity Awards as described in Section 2.06(a) and Section 2.06(b) that are being converted into the right to receive the Per Share Merger Consideration in accordance with this Agreement, at the Closing, Parent shall pay or cause to be paid to the Surviving Corporation an amount in cash necessary for the payment of the Per Share Merger Consideration with respect to such Company Equity Awards for further payment to such holders of Shares immediately prior to such time when Company Equity Awards, no later than five (5) Business Days following the amounts would otherwise escheat to or become property of any Governmental Authority shall becomeEffective Time, to through the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoSurviving Corporation’s payroll system.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateOpCo Merger Effective Time, Parent Acquiror shall appoint a bank or trust company to act as an exchange agent (the “Depository Exchange Agent”) for purposes of paying the aggregate Offer Price reasonably satisfactory to the holders of Shares Company, it being agreed that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Continental Stock Transfer & Trust Company is an acceptable Exchange Agent”) , for the purpose of exchanging for distributing the Merger consideration payable in respect of Acquiror Class B Common Stock and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Consideration, FTV Blocker Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Company Merger Consideration payable pursuant to Section 3.03(athe provisions of this Article II.
(b) (together Prior to the OpCo Merger Effective Time, Acquiror shall cause to be deposited with the amount Exchange Agent, in trust for the benefit of the holders of Company Membership Units and Company Equity Awards, for payment in accordance with this Article II, (i) the Total Cash Consideration and (ii) a number of shares of Acquiror Class A Common Stock and Acquiror Class C Common Stock sufficient to deliver the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Consideration and FTV Blocker Consideration and the Company Merger Consideration, in each case, payable pursuant to this Agreement. All cash and book-entry shares representing shares of Acquiror Class A Common Stock and Acquiror Class C Common Stock deposited by Acquiror with the Exchange Agent for distribution pursuant to this Article II are referred to in this Agreement as the “Exchange Fund.” The Exchange Agent will, pursuant to irrevocable instructions to be delivered to the Exchange Agent by Acquiror, deliver the appropriate cash amount, if any, and shares of Acquiror Class A Common Stock and Acquiror Class C Common Stock out of the Exchange Fund pursuant to the immediately preceding sentence, the “Payment Fund”)provisions of this Article II. The Payment Exchange Fund shall will not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepurpose.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the OpCo Merger Effective Time, there shall will be no further registration of transfers of SharesCompany Membership Units or Company Equity Awards. From and after the OpCo Merger Effective Time, the Company Unitholders and holders of Company Equity Awards will cease to have any rights with respect to the Company Membership Units or Company Equity Awards, except as otherwise provided in this Agreement, by applicable Law or, in the case of provisionally vested Class C Units or Company Equity Awards, by the Time Vesting Provisions Schedule.
(d) Any portion No fractional shares of Acquiror Class A Common Stock, Acquiror Class C Common Stock or Company Class EX Units shall be issued by virtue of the Merger Consideration made available Blocker Mergers or the OpCo Merger. Each holder of Company Membership Units or vested Company Equity Awards who would otherwise be entitled to receive a fraction of a share of Acquiror Class A Common Stock (after aggregating all fractional shares of Acquiror Class A Common Stock issuable to such holder) or a fractional Company Class EX Unit (and corresponding fractional share of Acquiror Class C Common Stock) shall, in lieu of such fractional thereof, be paid in cash the dollar amount (rounded to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) nearest whole cent), without interest, determined by multiplying such fraction by $10.00; provided, for the avoidance of doubt, that remains unclaimed by the holders of Shares twelve months after the Effective Time no cash shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance payable with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder fractional share of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoAcquiror Class C Common Stock.
Appears in 1 contract
Sources: Business Combination Agreement (Spartan Acquisition Corp. II)
Surrender and Payment. (a) Pursuant to Section 3.3 of the Separation Agreement, the Exchange Agent (as defined below, and acting as “Distribution Agent” thereunder) shall hold, for the account of the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed or exchanged, as applicable, in the Distribution (other than any shares of Hook Stock, which shares of Hook Stock are addressed in and shall be treated in accordance with Section 3.4 of the Separation Agreement).
(b) Prior to the Acceptance DateEffective Time, Parent RMT Partner shall appoint designate a nationally recognized commercial bank or trust company reasonably acceptable to the Company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose benefit of exchanging for the Merger Consideration the Shares pursuant to holders of shares of SpinCo Common Stock whose shares of SpinCo Common Stock are exchanged in accordance with this Section 3.03(a3.2(b). Promptly after (and in any event no later than At or substantially concurrently with the first Business Day after) the Acceptance DateEffective Time, Parent SpinCo shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make Exchange Agent, for the payment benefit of the aggregate Offer Price payable pursuant to holders of shares of SpinCo Common Stock, for exchange in accordance with this Section 2.01(d). As of 3.2(b) as promptly as practicable after the Effective Time, Parent shall deposit, or shall cause to be deposited, with book-entry shares representing the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable issuable to holders of shares of SpinCo Common Stock as of immediately prior to the Effective Time pursuant to Section 3.03(a3.1(a)(i) (such book-entry shares of RMT Partner Common Stock, together with any cash received by the amount deposited Exchange Agent in respect of dividends or distributions with respect thereto pursuant to the immediately preceding sentenceSection 3.2(d) and other amounts payable in accordance with Section 3.2(e), the “Payment Exchange Fund”). The Payment Exchange Agent shall, following the Effective Time, pursuant to irrevocable instructions from RMT Partner, deliver the Merger Consideration out of the Exchange Fund. The cash portion, if any, of the Exchange Fund shall be invested by the Exchange Agent as directed by RMT Partner; provided that (i) no such investment of or losses thereon shall relieve RMT Partner from making or causing to be made the payments required by this Section 3.2 or elsewhere in this Agreement, or affect the amount payable in respect of the shares of SpinCo Common Stock outstanding as of immediately prior to the Effective Time, (ii) to the extent the Exchange Fund is insufficient at any time to make such payments, RMT Partner shall promptly provide additional funds to the Exchange Agent in the amount of any such deficiency and (iii) no such investment shall have maturities that would reasonably be expected to prevent or delay the payments to be made pursuant to this Section 3.2. Any interest or other income from such investments shall be paid to and become the property of RMT Partner. The Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided specified in this Section 3.04(b3.2(b), at . No later than ten (10) Business Days prior to the Effective Time, holders of Shares RMT Partner shall not be required to take any action enter into an agreement with respect the Exchange Agent, in form and substance reasonably satisfactory to the exchange Company, to effect the applicable terms of their Shares for this Agreement (the Merger Consideration“Agent Agreement”).
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as As promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, RMT Partner shall cause the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration Exchange Agent to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant deliver to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of shares of SpinCo Common Stock following the Shares surrendered, or shall have established Distribution and immediately prior to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration from the Exchange Fund, the shares of transfers RMT Partner Common Stock into which such shares of Shares.
(d) Any portion of the Merger Consideration made available SpinCo Common Stock have been converted pursuant to the Paying Agent pursuant Merger, which shares shall, for the sake of clarity, be delivered to Section 3.04(a) the same Persons who received shares of SpinCo Common Stock in the Distribution (in respect of such shares of SpinCo Common Stock). Each holder of shares of SpinCo Common Stock following the Distribution and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after immediately prior to the Effective Time shall be returned entitled to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration receive in respect of such Shares without shares of SpinCo Common Stock held by such Person a book-entry authorization representing the number of whole shares of RMT Partner Common Stock that such holder has the right to receive pursuant to this Section 3.2(c) (and cash in lieu of fractional shares of RMT Partner Common Stock, as contemplated by Section 3.2(e), and any interest thereondividends or distributions and other amounts pursuant to Section 3.2(d)). Notwithstanding the foregoing, Parent The Exchange Agent shall not be liable entitled to vote or exercise any holder rights of Shares for any amount paid ownership with respect to a public official pursuant RMT Partner Common Stock held by it from time to applicable abandoned property, escheat time hereunder or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when under 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 Parent free and clear of any claims or interest of any Person previously entitled theretoAgent Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank as the exchange agent (or trust company such other nationally recognized exchange agent agreed to between the parties) (the “Exchange Agent”) to act as agent (for the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that Company’s stockholders who shall become entitled to receive the aggregate Offer Price funds pursuant to Section 2.01(d) and this Agreement, including as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration Consideration, certificates representing shares of Company Common Stock (the Shares pursuant “Certificates;” provided, however, that any references herein to Section 3.03(a“Certificates” are deemed to include references to book-entry account statements relating to the ownership of shares of Company Common Stock). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Exchange Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) an amount in cash equal to the sum of the aggregate Merger Consideration and the aggregate Cash Amount (the “Aggregate Merger Consideration”). To the extent such fund diminishes for any reason below the level required to make prompt payment of the Merger Consideration, Parent and the Surviving Corporation shall promptly replace or restore, or cause to be replaced or restored, the lost portion of such fund so as to ensure that it is, at all times, maintained at a level sufficient to make such payments. The Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall relieve Parent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable hereunder, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days, or guaranteed by, and backed by the full faith and credit of, the United States. Any and all interest or other amounts earned with respect to such funds shall become part of the Payment Fund, and any amounts in excess of the amounts payable hereunder shall be promptly returned to either Parent or the Surviving Corporation. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer exchange of shares of Company Common Stock and the payment of the Merger Consideration in respect of such shares. Promptly after the Effective Time, and in any event no later than three (3) Business Days after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of Shares shares of Company Common Stock at the Effective Time whose shares were converted into the right to receive the Merger Consideration pursuant to Section 2.03(a) a letter of transmittal and instructions in forms reasonably satisfactory to the MergerCompany (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery or transfer of the Certificates (or affidavits of loss in lieu of the Certificates pursuant to Section 2.09) to the Exchange Agent for use in such exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the shares of Company Common Stock represented by a Certificate, promptly, upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-party intermediaries entry transfer of shares of Company Common Stock, and, in each case, delivery to ensure that the Paying Exchange Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures documents as agreed may reasonably be requested by Parent, the Company, the Paying Exchange Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) so surrendered or as otherwise contemplated in Section 3.05transferred, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive such Merger Consideration. No interest shall be paid or accrued on the applicable Merger Consideration as contemplated by Section 3.03(a)cash payable upon the surrender or transfer of such Certificate.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Company Common Stock formerly represented by such Shares. After Certificate and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time shall be returned delivered to Parentthe Surviving Corporation, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent or the Surviving Corporation for payment of the Merger Consideration in respect of such Shares Consideration, without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar lawsinterest. Any amounts remaining unclaimed by such holders of Shares immediately prior to at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent or its designee, free and clear of any all claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger (RMG Networks Holding Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, --------------------- Parent shall appoint a bank American Stock Transfer & Trust Co. or trust company such other exchange agent reasonably acceptable to act as agent the Company (the “Depository "Exchange Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”") for the -------------- purpose of exchanging Certificates for the Merger Consideration the Shares pursuant to Section 3.03(a)Consideration. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of At the Effective Time, Parent shall depositdeposit with the Exchange Agent, for the benefit of the holders of the Certificates for exchange in accordance with this Article I, certificates representing shares of Parent Common Stock issuable pursuant to this Article I upon surrender of the Certificates. Parent shall make available to the Exchange Agent from time to time as required after the Effective Time cash necessary to pay dividends and other distributions in accordance with this Article I and to make payments in lieu of any fractional shares of Parent Common Stock in accordance with Section 1.6. Promptly after the Effective Time, Parent will send, or will cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock as of the Effective Time, a letter of transmittal for use in such exchange (which shall cause to specify that the delivery shall be depositedeffected, with and risk of loss and title shall pass, only upon proper delivery of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Certificates to the immediately preceding sentenceExchange Agent) in such form as the Company and Parent may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerExchange Agent.
(b) Except as provided Each holder of shares of Company Common Stock that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, will be entitled to promptly receive the Merger Consideration in this Section 3.04(b)respect of the shares of Company Common Stock represented by such Certificate. Until so surrendered, at each such Certificate shall, after the Effective Time, holders of Shares shall not be required represent for all purposes only the right to take any action with respect to the exchange of their Shares for the receive such Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made issued to or registered in the name of a Person (as defined below) other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment to such issuance or registration that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment delivery of the Merger Consideration shall pay to the Exchange Agent any transfer or other taxes required as a result of such issuance or registration in the name of a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicablepayable. None For purposes of Parentthis Agreement, Purchaser "Person" means an individual, a corporation, a limited liability company, a ------ partnership, an association, a trust or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under entity or organization, including a government or political subdivision or any circumstanceagency or instrumentality thereof.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Cmi Corp)
Surrender and Payment. (a) Prior Parent shall authorize one or more Persons reasonably acceptable to the Acceptance Date, Parent shall appoint a bank or trust company Company to act as agent (Exchange Agent hereunder the “Depository "Exchange Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). ." Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant deliver to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than Exchange Agent sufficient cash to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for satisfy the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible . Promptly after the Effective Time, the Surviving Corporation shall cause to be mailed to each record holder, as of the Effective Time, of certificates representing outstanding shares of Company Common Stock ("Company Certificates") or shares of Company Common Stock represented by book-entry ("Company Book-Entry Shares") (other than Dissenting Shares), a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates to the Exchange Agent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and instructions for use in effecting the surrender of the Company Certificates or, in the case of Company Book-Entry Shares, the surrender of such shares for payment of the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceledtherefor. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after After the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures this Section ------- 3.4(a), to the Exchange Agent of a Company Certificate or Company ------ Book-Entry Shares, together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other procedures documents as agreed by Parentmay be required pursuant to such instructions, the Company, Exchange Agent shall promptly deliver to the Paying Agent, DTC, DTC’s nominees and holder of such other necessary thirdCompany Certificate or Company Book-party intermediariesEntry Shares in exchange therefor, the Merger Consideration to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company 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. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be issued in a name other than that in which the beneficial owners Company Certificate surrendered for exchange is registered, it shall be a condition of such Shares heldexchange that the Company Certificate so surrendered shall be properly endorsed, directly with signature guaranteed, or indirectly through DTCotherwise in proper form for transfer, including compliance with all laws and that the person requesting such exchange shall become entitled pursuant pay to Section 3.03(a).
(iii) No interest shall accrue Company or be paid on its transfer agent any transfer or other taxes required by reason of the issuance of the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit a name other than that of the registered holder thereofof the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until exchanged surrendered as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.053.4(a), each Company Certificate and each Company Book-Entry --------------- Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.03(a).3.1. ------------
(ivb) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All The Merger Consideration paid upon the transfer surrender for exchange of Company Certificates or Company Book-Entry Shares in accordance with the terms hereof of this Article 3 shall be deemed to have been paid issued (and paid) in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After shares of Company Common Stock so exchanged.
(c) At any time following the date which is nine months after the Effective Time, there Parent shall be no further registration of transfers of Shares.
entitled to require the Exchange Agent to deliver to it any or funds (dincluding any interest received with respect thereto) Any portion of the Merger Consideration which have been made available to the Paying Exchange Agent pursuant and which have not been disbursed to Section 3.04(a) holders of Company Certificates or Company Book-Entry Shares and thereafter such holders shall be entitled to look to Parent and the Surviving Corporation (and any interest subject to abandoned property, escheat or other income earned thereonsimilar laws) that remains unclaimed by only as general creditors thereof with respect to the holders applicable Merger Consideration payable upon due surrender of Shares twelve months after their Company Certificates or Company Book-Entry Shares. The Surviving Corporation shall pay all charges and expenses, including those of the Effective Time shall be returned to ParentExchange Agent, upon demand, and any such holder who has not exchanged such Shares in connection with the exchange of shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 prior to that time Consideration. None of Parent, Surviving Corporation, any subsidiary or Affiliate of Parent or Surviving Corporation or the Exchange Agent shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any former holder of Shares Company Common Stock for any amount paid to a public official cash, pursuant to any applicable abandoned property, escheat or other similar laws. Any amounts remaining unclaimed .
(d) If any Company Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by holders the Person claiming such Company Certificate to be lost, stolen or destroyed and, if requested by the Surviving Corporation, the posting by such Person of Shares immediately prior 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 time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable LawCompany Certificate, the property Exchange Agent will pay, in exchange for such lost, stolen or destroyed Company Certificate, the Merger Consideration to be paid in respect of Parent free and clear the shares of any claims or interest of any Person previously entitled theretoCompany Common Stock represented by such Company Certificate.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Merger Subsidiary shall appoint a bank or trust company reasonably satisfactory to the Company to act as disbursing agent (the “Depository "Disbursing Agent”") for purposes the payment of paying Merger Consideration upon surrender of certificates representing the aggregate Offer Price Shares. Prior to the Effective Time, Merger Subsidiary will enter into a disbursing agent agreement with the Disbursing Agent, and Parent shall cause Merger Subsidiary to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund") prior to the time such payments are to be made by the Disbursing Agent. For purposes of determining the amount to be so deposited, Merger Subsidiary shall assume that become entitled no stockholder of the Company will perfect any right to receive appraisal of his, her or its Shares. The Disbursing Agent shall invest the aggregate Offer Price pursuant Exchange Fund as directed by Merger Subsidiary; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to Section 2.01(d) and as agent (the “Paying Agent”) provide for the purpose payment of exchanging for principal and interest, or (iii) commercial paper rated the Merger Consideration highest quality by either Moody's Investors Services, Inc. or Standard & Poor's Corporation; pro▇▇▇▇▇ ▇urther that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.03(a3.06(b). Promptly Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.06(b) shall be promptly paid to Parent. Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, promptly replenish the Exchange Fund to the extent of any investment losses.
(b) Merger Subsidiary shall instruct the Disbursing Agent to mail promptly after (and the Effective Time, but in any event no later than the first fifth Business Day afterthereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates"), and whose Shares were converted into the right to receive Merger Consideration pursuant to Section 3.06(b), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent and shall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with surrender of the Depository Agent cash sufficient to make the Certificates in exchange for payment of the aggregate Offer Price payable pursuant Merger Consideration. Upon surrender of a Certificate to Section 2.01(d). As of the Effective TimeDisbursing Agent for cancellation, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with such letter of transmittal duly executed and such other documents as may be reasonably required by the amount deposited pursuant to the immediately preceding sentenceDisbursing Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate shall be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person receive in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on exchange therefor the Merger Consideration payable to holders in respect of Shares in accordance with this Section 3.04(b) for that Certificate, less any required withholding of Taxes, and such Certificate shall forthwith be canceled. No interest will be paid or accrued on the benefit cash payable upon the surrender of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Certificates.
(ivc) If the payment of any Merger Consideration is to be made to a Person person other than the Person person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Purchaser or Shares held by the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration.
(ce) All At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable law. The Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be no further registration cancelled and exchanged for cash as provided in this Article III. At the close of transfers business on the day of Sharesthe Effective Time the stock ledger of the Company shall be closed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(a) (and pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve time more than nine months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Merger Consideration in respect Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of such Shares without any governmental unit or agency, shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest thereonof any person previously entitled thereto. Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation or the Disbursing Agent shall not be liable to any holder of Shares a Certificate for any amount paid Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to applicable any abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretolaw.
Appears in 1 contract
Sources: Merger Agreement (Brown Tom Inc /De)
Surrender and Payment. (a) At least two (2) Business Days prior to the Closing Date, the Company shall deliver to Parent its good faith estimate of the Aggregate Merger Consideration (the “Estimated Aggregate Merger Consideration”), including an estimate of the outstanding amount of Indebtedness of the Company as of the Closing (the “Estimated Indebtedness”), the aggregate amount of Holder Transaction Expenses (the “Estimated Holder Transaction Expenses”) and the amount of Net Working Capital, in each case including reasonable support for its calculation of the Estimated Aggregate Merger Consideration (and the outstanding amount of Indebtedness of the Company as of the Closing, the aggregate amount of Holder Transaction Expenses, and the amount of Net Working Capital). The calculation of the Estimated Aggregate Merger Consideration (and the components thereof) shall be prepared in accordance with the Agreed Accounting Principles. In addition, at least five (5) Business Days prior to the Closing Date, the Company shall deliver to Parent (i) an itemized list of all Indebtedness of the Company as of the Closing, including the amount of such Indebtedness as of the Closing (broken down by Person to whom such Indebtedness is owed), the Person to whom such Indebtedness is owed and wire instructions for such Person to whom such Indebtedness is owed (the “Indebtedness Pay-Off Schedule”); provided that the amount of Indebtedness reflected on the Indebtedness Pay-Off Schedule shall not exceed the amount of the Estimated Indebtedness, and (ii) an itemized list of all Holder Transaction Expenses, including the amount of such Holder Transaction Expenses (broken down by Person to whom such Holder Transaction Expenses are payable), the Person or Persons to whom such Holder Transaction Expenses are owed and wire instructions for such Person or Persons to whom such Holder Transaction Expenses are owed (the “Holder Transaction Expenses Schedule”); provided that the amount of Holder Transaction Expenses reflected on the Holder Transaction Expenses Schedule shall not exceed the amount of the Estimated Holder Transaction Expenses.
(b) Prior to the Acceptance Closing Date, Parent shall appoint Parent, the Representative and the Paying Agent will enter into a bank or trust company to act as paying agent agreement in substantially the form of Exhibit B attached hereto (the “Depository AgentPaying Agent Agreement”) pursuant to which the Paying Agent will act as paying agent in connection with the consideration to be paid to the Stockholders pursuant to the Paying Agent Agreement. The Paying Agent’s fees and expenses shall be borne by Parent. Promptly after the Effective Time, the Parent shall deliver (i) a Letter of Transmittal (which includes an election form that provides for purposes the Stockholders to make their respective Allocation Elections) in substantially the form of paying Exhibit C hereto to the aggregate Offer Price Stockholders, and a Letter of Transmittal (which includes an election form that provides for the Warrantholders to make their respective Allocation Elections) in substantially the form of Exhibit D hereto to the Warrantholders (collectively, the “Letters of Transmittal”), entitled to receive a portion of the Aggregate Merger Consideration in respect of their shares of Company Common Stock or Company Preferred Stock or in respect of their Warrants, (ii) an Option Cancellation Agreement (which agreement includes an election form that provides for the Optionholders to make their respective Allocation Elections) in the form attached hereto as Exhibit E (the “Non-Employee Option Cancellation Agreement”) hereto to the holders of Shares that become Vested Options who are not employees of the Company entitled to receive a portion of the aggregate Offer Price pursuant Aggregate Merger Consideration in respect of their Vested Options, (iii) to Section 2.01(dthe holders of Vested Options who are employees of the Company and entitled to receive a portion of the Aggregate Merger Consideration in respect of their Vested Options, an Option Cancellation Agreement (which agreement includes an election form that provides for the Optionholders to make their respective Allocation Elections) in the form of Exhibit F hereto (together with the Non-Employee Option Cancellation Agreements, the “Option Cancellation Agreements”), and as agent (iv) to the holders of Unvested Options who are entitled to receive Parent Options in respect of their Unvested Options, an Option Agreement in the form of Exhibit G hereto (the “Paying AgentParent Option Agreement”).
(c) for At the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance DateClosing, Parent shall depositdeliver or pay, or shall cause the Surviving Corporation to deliver or pay, in cash by wire transfer of immediately available funds and net of the Deposit Amount (which shall be paid to the Paying Agent by the Company prior to the Closing), the Closing Cash Consideration (based on the Estimated Aggregate Merger Consideration), the Escrow Amount, the balance of amounts of the Indebtedness identified on the Indebtedness Pay-Off Schedule (other than up to $1,400,000 of Indebtedness owed to Company Bank) and outstanding Holder Transaction Expenses as follows:
(i) (A) the Indemnity Escrow Amount shall be deposited into an escrow account (the “Indemnity Escrow Account”), (B) the Working Capital Escrow Amount shall be deposited into an escrow account (the “Working Capital Escrow Account”), and (C) the Representative Cost Escrow Amount shall be deposited into an escrow account (the “Representative Cost Escrow Account”) in each case, on behalf of Parent and the Holders, which accounts shall be established pursuant to the Escrow Agreement;
(ii) all amounts necessary to fully discharge the then-outstanding balances of the Indebtedness identified on the Indebtedness Pay-Off Schedule (other than up to $1,400,000 of Indebtedness owed to Company Bank) and the Pay-Off Letters shall be paid on behalf of the Company to the applicable creditors’ accounts set forth in Indebtedness Pay-Off Schedule and the Pay-Off Letters or as otherwise advised by such creditors in writing; provided that the amount of payments pursuant to this Section 1.05(c)(ii) shall not exceed the amount of the Estimated Indebtedness (excluding $1,400,000 in Indebtedness owed to the Company Bank);
(iii) all amounts necessary to fully discharge the then-outstanding balances of Holder Transaction Expenses identified on the Holder Transaction Expenses Schedule and the Pay-Off Letters shall be paid on behalf of the Company to the accounts designated by the Persons owed such amounts as set forth in the Pay-Off Letters and on the Holder Transaction Expenses Schedule; provided that the amount of payments pursuant to this Section 1.05(c)(iii) shall not exceed the amount of the Estimated Holder Transaction Expenses;
(iv) the aggregate cash consideration to be deposited, with the Depository Agent cash sufficient paid to make the payment of the aggregate Offer Price payable Stockholders pursuant to Section 2.01(d1.04 shall be paid to the Paying Agent, for payment, in accordance with such Section, to each Stockholder who has completed and returned to the Paying Agent a properly completed and executed Letter of Transmittal (including a Lock-Up Agreement executed by any Stockholder who elects to receive Closing Consideration Shares in accordance with Section 1.04). As , together with the Company Stock Certificates (or an affidavit of lost stock certificate in form reasonably acceptable to Parent) representing such Stockholder’s outstanding shares of Company Stock;
(v) the aggregate cash consideration (other than Option Closing Consideration to be paid to Optionholders who received their Option in connection with current or past employment with the Company (“Employee Optionholders”)) to be paid to Optionholders pursuant to Section 1.04 shall be paid to the Surviving Corporation for payment to each such Holder who has completed and returned to the Parent a properly completed and executed Option Cancellation Agreement (including a Lock-Up Agreement executed by any such Optionholder who elects to receive Closing Consideration Shares in accordance with Section 1.04) ; and
(vi) the aggregate Closing Option Consideration to be paid to Employee Optionholders whose Vested Options represent the right to receive payment in cash pursuant to Section 1.04 shall be paid to the Surviving Corporation and such proceeds shall then be paid to such Holders of Options through the Surviving Corporation’s payroll system as provided in Section 1.05(h) below, provided that such Holder has completed and returned to the Parent a properly completed and executed Option Cancellation Agreement (including a Lock-Up Agreement executed by any such Optionholder who elects to receive Closing Consideration Shares in accordance with Section 1.04).
(d) After the Effective Time, Parent shall depositpromptly deliver (i) to the Paying Agent, or shall cause for delivery to be deposited, with each Stockholder who has completed and returned to the Paying Agent cash sufficient a Letter of Transmittal (including a Lock-Up Agreement executed by any Stockholder who elects to pay the aggregate Merger receive Closing Consideration payable pursuant to Shares in accordance with Section 3.03(a1.04 ) (together with the Company Stock Certificates representing outstanding shares of Company Stock or an affidavit of lost stock certificate in form reasonably acceptable to Parent, and (ii) to the Surviving Corporation for delivery to each Optionholder (other than Unvested Optionholders) who has completed and returned to Parent an Option Cancellation Agreement and to each Warrantholder who has completed and returned to the Parent a Letter of Transmittal (including a Lock-Up Agreement executed by any such Optionholder or Warrantholder who elects to receive Closing Consideration Shares in accordance with Section 1.04), a certificate representing the number of Closing Consideration Shares (rounded down to the nearest share) issuable to each such Holder based on the Allocation Election set forth in such Holder’s Letter of Transmittal or Option Cancellation Agreement, as applicable. In lieu of any fractional share of a Parent Share that a Holder would have received had the number of Parent Shares not been rounded down, each such Holder shall be paid (and after taking into account and aggregating shares of Company Stock represented by all Company Stock Certificates surrendered by, or Vested Options or Warrants held by, such Holder) cash (without interest) in an amount deposited equal to the product obtained by multiplying (x) the fractional share interest to which such Holder (after taking into account and aggregating all shares of Company Stock represented by all Company Stock Certificates surrendered by, or Vested Options or Warrants held by, such Holder) would otherwise be entitled by (y) the Parent Stock Value.
(e) The Closing Consideration Shares issued pursuant to the immediately preceding sentenceterms of this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(a)(2) thereof and may not be re-offered or resold other than in conformity with the registration requirements of the Securities Act and such other applicable rules and regulations or pursuant to an exemption therefrom. Until the resale by the Holders of their Parent Shares has become registered (including pursuant to the Registration Statement) under the Securities Act, or otherwise transferable pursuant to an exemption from such registration otherwise required thereunder, the Parent Shares issued to the Holders hereunder shall be characterized as “Payment Fundrestricted securities” under the Securities Act and, if certificated, shall bear the following legend (or if held in book entry form, will be noted with a similar restriction): “THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY, AND THE RESALE OF SUCH SHARES HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE RESOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(bf) Except As promptly as provided in this Section 3.04(b), at practicable following the Effective Time, holders Parent shall deliver to each Stockholder and each holder of Shares Vested Options and Warrants a copy of the Disclosure Materials and the applicable Letter of Transmittal, and Parent shall (i) cause the Paying Agent to deliver to each Stockholder who has completed a Letter of Transmittal (including a Lock-Up Agreement if applicable) and returned it to the Paying Agent, together with any applicable Company Stock Certificate (or affidavit of lost stock certificate in form reasonably acceptable to Parent) a check (or if elected by such Holder, a wire transfer) representing that portion of the Closing Cash Consideration to which such Holder is entitled, and (ii) cause the Surviving Corporation to deliver to each Optionholder or Warrantholder who has executed and completed an Option Cancellation Agreement or Letter of Transmittal, respectively (including a Lock-Up Agreement, if applicable) and returned it to the Parent, a check (or if elected by such Holder, a wire transfer) representing that portion of the Closing Cash Consideration to which such Holder is entitled. The delivery of such checks (or wire transfers, as applicable) by the Paying Agent or Surviving Corporation, as applicable, shall be deemed, for all purposes, to have satisfied in full the obligations of Parent to pay the Closing Cash Consideration to such Holders and Parent shall have no further obligation for such payments. Notwithstanding anything to the contrary in this Agreement (i) Parent shall not be required to take pay any action with respect amount of the Closing Cash Consideration or the Closing Consideration Shares to any Stockholder until receipt from such Stockholder of a properly completed and executed Letter of Transmittal (including a Lock-Up Agreement) and the applicable Company Stock Certificate or an affidavit of lost stock certificate in form reasonably acceptable to Parent, (ii) Parent shall not be required to pay any amount of the Closing Cash Consideration or the Closing Consideration Shares to any Warrantholder until receipt from such Warrantholder of a properly completed and executed Letter of Transmittal (including a Lock-Up Agreement), (iii) Parent shall not be required to pay any amount of the Closing Cash Consideration or the Closing Consideration Shares to any Optionholder holding Vested Options until receipt from such Optionholder of a properly completed and executed Option Cancellation Agreement, and (iv) Parent shall not be required to issue any Parent Options to any Optionholder holding Unvested Options until receipt from such Optionholder of a properly completed and executed Parent Option Agreement.
(g) Notwithstanding anything in this Agreement to the exchange contrary, Parent shall not (through the Paying Agent or otherwise) pay any Closing Cash Consideration or Closing Consideration Shares to the Principals, other than the Principal Initial Consideration, until each other Holder (other than Unvested Optionholders) shall have submitted to the Paying Agent or the Surviving Corporation, as applicable, a completed and executed Letter of Transmittal or Option Cancellation Agreement, as applicable, setting forth each Holder’s respective Allocation Elections. The Principal Final Consideration shall be paid to the Principals by the Paying Agent within five (5) Business Days after the earlier of (i) the date on which all of the other Holders (other than Unvested Optionholders) shall have submitted to the Paying Agent a completed and executed Letter of Transmittal setting forth each Holder’s respective Allocation Elections, (ii) the date on which all Holders will be deemed to have made their Shares for respective Allocation Elections by reason of the Merger Considerationlast sentence of Section 1.04(g).
(h) As promptly as practicable following the Effective Time, Parent shall cause the Surviving Corporation to pay, through the Company’s payroll system, to each Optionholder holding Vested Options who is, immediately prior to the Effective Time, an employee of the Company, and who has completed and returned to the Paying Agent an Option Cancellation Agreement, that portion of the Closing Cash Consideration to which such Optionholder is entitled pursuant to Section 1.04.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares Until surrendered in accordance with this Section 3.04(b) for the benefit Agreement, each Company Stock Certificate, each of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, Options and each Share of the Warrants shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration payment as contemplated by Section 3.03(a)provided in this Agreement.
(ivj) If the payment of As promptly as possible, but in any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(ivevent within sixty (60) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months days after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoingClosing Date, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, deliver to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.Representativ
Appears in 1 contract
Sources: Merger Agreement (Health Insurance Innovations, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “"Paying Agent”") for the purpose of exchanging the Certificates for the Merger Consideration the Shares pursuant to Section 3.03(a)Consideration. Promptly Immediately after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit with or shall cause make available to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders be paid in respect of Shares in the Merger.
shares of Company Common Stock (b) Except as provided in this Section 3.04(bthe "Exchange Fund"). Promptly after the Effective Time, Parent will send, or will cause the Paying Agent to send, to each record holder of shares of Company Common Stock, at the Effective Time, holders a letter of Shares transmittal and instructions (which shall not specify that the delivery shall be required to take any action with respect effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Paying Agent) for use in such exchange (a "Letter of their Shares Transmittal").
(b) Upon surrender to the Paying Agent of his Certificate together with a properly completed Letter of Transmittal, each holder of shares of Company Common Stock will be entitled to receive promptly the Merger Consideration in respect of the shares of Company Common Stock represented by his Certificate. Until so surrendered, each such Certificate shall represent after the Effective Time, for all purposes, only the right to receive the Merger Consideration.
(ic) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures If any portion of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person person other than the Person person in whose name the Certificate so surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that such Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person person requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrenderedsuch Certificate, or shall have established establish to the satisfaction of the Surviving Corporation Paying Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharespayable.
(d) Any portion of the Merger Consideration Exchange Fund made available to or deposited with the Paying Agent pursuant to this Section 3.04(a) (and any interest or other income earned thereon) 2.3 that remains unclaimed by the holders of Shares twelve Company Common Stock six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares his shares for the Merger Consideration in accordance with this Section 3.04 2.3 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares consideration without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by the holders of Shares Company Common Stock five years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Lawapplicable law, the property of Parent free and clear of any claims or interest of any Person person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the "Exchange Agent") to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates; or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the "Book-Entry Shares"). Promptly after (the Effective Time and in any event no later than the first within two (2) Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of Days after the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, in a separate account for the benefit of the holders of Shares, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (the "Payment Fund"). If for any reason the cash in the Payment Fund shall be insufficient to Section 3.03(a) (together with fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall promptly deposit cash into the Payment Fund in an amount which is equal to the deficiency in the amount deposited pursuant of cash required to make the immediately preceding sentence, the “Payment Fund”aggregate cash payments required by Section 3.01(b). The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of Shares for the Merger Consideration Consideration. Promptly after the Effective Time and in any event within five (5) Business Days after the Effective Time, Parent shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an "agent's message" by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries to ensure that Entry Shares. Until so surrendered or transferred, as the Paying Agent will transmit to DTC case may be, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article III, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, Parent or the Exchange Agent for transfer, the holder of such Certificates or Book-Entry Shares shall be instructed to comply with the letter of transmittal and instructions referred to in Section 3.02(b) in order to receive the cash to which the holder of such Certificate is entitled pursuant to this Article III.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares shares of Company Common Stock twelve (12) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 3.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent none of Parent, the Surviving Corporation, nor any other Person shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoLaws.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the Shares pursuant to Section 3.03(a“Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause Prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause make available to be deposited, with the Paying Exchange Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with be paid in respect of the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer shares of Company Stock represented by Certificates and the Merger Consideration to holders of Shares in Uncertificated Shares. Such funds may be invested by the Merger.
(b) Except Exchange Agent as directed by Parent; provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
that (i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent no such investment or losses thereon shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on affect the Merger Consideration payable hereunder and following any losses Parent shall promptly provide additional funds to holders of Shares in accordance with this Section 3.04(b) the Exchange Agent for the benefit of the holder thereofshareholders of the Company in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or ▇▇▇▇▇’▇ Investors Service, Inc., respectively. Until exchanged Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as contemplated Parent directs. The parties acknowledge and agree that such funds are owned by this Section 3.04(b) or Parent for Tax purposes, until paid pursuant to the terms hereof and, accordingly, any income earned on such amounts will be treated as otherwise contemplated in Section 3.05, each Share shall be deemed at any time income of Parent. Promptly after the Effective Time (but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to represent only send, to each holder of shares of Company Stock at the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting Effective Time notice advising such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the effectiveness of the Merger, which notice shall include appropriate transmittal instructions (including, if applicable, a letter of transmittal), which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that Exchange Agent, for use in such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceexchange.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.01(b), Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of Shares for the Merger Consideration Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries to ensure that Entry Shares. Until so surrendered or transferred, as the Paying Agent will transmit to DTC case may be, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this Article II, each Certificate or Certificates so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.02 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock five (5) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior Except as set forth in the following sentence, the Company shall act as paying agent in effecting the exchange of Company Stock provided for herein. At the Closing, Buyer shall pay (or cause to be paid) by wire transfer of immediately available funds:
(i) to each Specified Stockholder on behalf of each holder of Company Stock, as set forth on Section 2.04(a)(i) of the Company Disclosure Schedule, who has duly executed and delivered to the Acceptance Company, no later than two (2) Business Days prior to the Closing Date, Parent a letter of transmittal (which shall appoint a bank or trust company to act as agent specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper (x) delivery of the certificates representing shares of Company Stock (the “Depository AgentCertificates”) for purposes or (y) transfer of paying the aggregate Offer Price to the holders uncertificated shares of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company Stock (the “Paying AgentUncertificated Shares”) to the Company) in the form set forth on Exhibit F hereto (each, a “Letter of Transmittal”) and the Certificates or Uncertificated Shares in respect therefore, an amount in cash (in U.S. dollars) equal to the amount of the aggregate Per Share Closing Date Consideration for the total shares of Company Stock represented thereby, in accordance with the instructions included in the Letter of Transmittal of the applicable Specified Stockholder;
(ii) to the Company, an amount in cash (in U.S. dollars) equal to the remainder of the Aggregate Closing Consideration payable to the other holders of Company Stock, Company Stock Options and Company Restricted Shares to the account (or accounts) specified by the Company, to be held in a separate segregated account, designated as such, for the sole purpose of exchanging for the Merger Consideration the Shares disbursement to such holders pursuant to this Section 3.03(a2.04;
(iii) to the Indemnity Escrow Agent, an amount in cash equal to U.S. $5,000,000 less the amount of all interest credited on the Deposit Escrow Amount through the date of the release of the Deposit Escrow Amount by the Deposit Escrow Agent into the Indemnity Escrow Fund (the “Indemnity Escrow Amount Balance”), for deposit into the Indemnity Escrow Fund; and
(iv) to an account designated by the Stockholder Representative, an amount in cash equal to U.S. $2,000,000 (the “Stockholder Representative Reserve”). Promptly after (and in any event no later than following the first Business Day after) date hereof, the Acceptance Date, Parent Company shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment Letter of the aggregate Offer Price payable pursuant Transmittal available to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to all holders of Shares in the MergerCompany Stock.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after After the Effective Time, upon surrender of such Certificates or Uncertificated Shares held to the Company, together with a Letter of record by DTC or its nominees Transmittal, duly completed and validly executed and delivered in accordance with DTC’s customary surrender procedures and the instructions thereto, the holder of such other procedures as agreed by ParentCertificate or Uncertificated Shares shall be entitled to receive, from the Company, in exchange therefor, the Paying Agentaggregate Per Share Merger Consideration for such Company Stock in cash, DTCas set forth in, DTC’s nominees and subject to, the provisions of this Agreement, including Section 2.02(a), and such other necessary third-party intermediariesCertificates or Uncertificated Shares shall be cancelled. Until surrendered as contemplated by, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares and in accordance with with, this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.052.04, each Share Certificate or Uncertificated Shares shall be deemed at any time after the Effective Time to represent only the right to receive the applicable aggregate Per Share Merger Consideration Consideration, for such Company Stock in cash, as contemplated by set forth in, and subject to, the provisions of this Agreement, including Section 3.03(a2.02(a).
(ivc) If any portion of the payment of any Per Share Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Company any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Company that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth in, this Agreement, including Section 2.02(a).
(de) Any portion of the Merger Aggregate Closing Consideration made available to the Paying Agent Company pursuant to Section 3.04(a) (and any interest or other income earned thereon2.04(a) that remains unclaimed by the holders of Shares twelve shares of Company Stock six (6) months after the Effective Time shall be returned to ParentBuyer, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the Per Share Merger Consideration in accordance with this Section 3.04 2.04 prior to that time shall thereafter look only to Parent the Company for payment of the Per Share Merger Consideration Consideration, as set forth in, and subject to, the provisions of this Agreement, including Section 2.02(a), in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent Buyer shall not be liable to any holder of Shares shares of Company Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when .
(f) Promptly after the amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by Applicable Lawdate hereof, the property Company shall furnish to each holder of Parent free a Company Stock Option and clear each holder of a Company Restricted Share, a notice and consent (each, an “Equity Award Notice”) in the form attached hereto as Exhibit G. The Company shall pay to each former holder of a Company Stock Option and each former holder of a Company Restricted Share an amount in cash calculated in accordance with Section 2.09(a)(i) with respect to each Company Stock Option held by such holder at Closing and an amount in cash calculated in accordance with Section 2.09(b)(i) with respect to each Company Restricted Share held by such holder at Closing, in each case, through a special payroll of the Company to be effected on the Closing Date. Buyer shall be responsible for ensuring that all payments to be made to each holder of a Company Stock Option and each holder of a Company Restricted Share pursuant to this Agreement are made by the Company or the Surviving Corporation (as applicable) in accordance with this Agreement, and Buyer shall be liable to each holder of a Company Stock Option and each holder of a Company Restricted Share for any claims or interest of any Person previously entitled theretofailure by the Surviving Corporation to discharge such payment obligations in accordance with the terms hereof.
Appears in 1 contract
Sources: Merger Agreement (Amc Entertainment Holdings, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent Merger Subsidiary shall appoint a bank or trust company reasonably satisfactory to the Company to act as disbursing agent (the “Depository "Disbursing Agent”") for purposes the payment of paying Merger Consideration upon surrender of certificates representing the aggregate Offer Price Shares. Prior to the Effective Time, Merger Subsidiary will enter into a disbursing agent agreement with the Disbursing Agent, and Parent shall cause Merger Subsidiary to deposit with the Disbursing Agent cash in an aggregate amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund") prior to the time such payments are to be made by the Disbursing Agent. For purposes of determining the amount to be so deposited, Merger Subsidiary shall assume that become entitled no stockholder of the Company will perfect any right to receive appraisal of his, her or its Shares. The Disbursing Agent shall invest the aggregate Offer Price pursuant Exchange Fund as directed by Merger Subsidiary; provided that such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to Section 2.01(d) and as agent (the “Paying Agent”) provide for the purpose payment of exchanging for principal and interest, or (iii) commercial paper rated the Merger Consideration highest quality by either Moody's Investors Services, Inc. or Standard & Poor's Corporation; pr▇▇▇▇▇▇ further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.03(a3.06(b). Promptly Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.06(b) shall be promptly paid to Parent. Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, promptly replenish the Exchange Fund to the extent of any investment losses.
(b) Merger Subsidiary shall instruct the Disbursing Agent to mail promptly after (and the Effective Time, but in any event no later than the first fifth Business Day afterthereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which immediately prior to the Effective Time represented Shares (the "Certificates"), and whose Shares were converted into the right to receive Merger Consideration pursuant to Section 3.06(b), a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Disbursing Agent and shall be in such form and have such other provisions as are reasonable and customary in transactions such as the Merger) and instructions for use in effecting the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with surrender of the Depository Agent cash sufficient to make the Certificates in exchange for payment of the aggregate Offer Price payable pursuant Merger Consideration. Upon surrender of a Certificate to Section 2.01(d). As of the Effective TimeDisbursing Agent for cancellation, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with such letter of transmittal duly executed and such other documents as may be reasonably required by the amount deposited pursuant to the immediately preceding sentenceDisbursing Agent, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate shall be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person receive in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on exchange therefor the Merger Consideration payable to holders in respect of Shares in accordance with this Section 3.04(b) for that Certificate, less any required withholding of Taxes, and such Certificate shall forthwith be canceled. No interest will be paid or accrued on the benefit cash payable upon the surrender of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Certificates.
(ivc) If the payment of any Merger Consideration is to be made to a Person person other than the Person person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Purchaser or Shares held by the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration.
(ce) All At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable law. The Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall be no further registration cancelled and exchanged for cash as provided in this Article III. At the close of transfers business on the day of Sharesthe Effective Time the stock ledger of the Company shall be closed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(a) (and pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve time more than nine months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Merger Consideration in respect Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of such Shares without any governmental unit or agency, shall, to the extent permitted by applicable law, become the property of the Surviving Corporation, free and clear of all claims or interest thereonof any person previously entitled thereto. Notwithstanding the foregoing, Parent none of Parent, the Company, the Surviving Corporation or the Disbursing Agent shall not be liable to any holder of Shares a Certificate for any amount paid Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to applicable any abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretolaw.
Appears in 1 contract
Surrender and Payment. (a) Prior At or prior to the Acceptance DateClosing, Parent shall appoint a United States bank or trust company to act as agent (or other independent financial institution in the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent United States (the “Paying Agent”) for that is reasonably acceptable to the purpose of exchanging Company to act, among other things, as paying agent for the Merger and to deliver the Merger Consideration to former stockholders of the Shares pursuant to Section 3.03(a)Company. Promptly after (The Company and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, enter into a Paying Agent agreement with the Depository Agent cash sufficient to make Paying Agent, which agreement shall set forth the payment duties, responsibilities and obligations of the aggregate Offer Price payable pursuant Paying Agent consistent with the terms of this Agreement. At or prior to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit (or shall cause to be deposited, ) with the Paying Agent Agent, for the account and benefit of the former holders of Company Common Stock, an amount of cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) this Article III (together with the amount deposited pursuant such cash shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Consideration Fund”). The Payment In the event the Consideration Fund shall not be used for any purpose other than insufficient to pay the Offer Price Merger Consideration (including with respect to Company Common Stock held by stockholders who did not vote in the Offer and favor of the Merger Consideration but who did not exercise, or who shall have effectively withdrawn or lost, their rights to holders appraisal of Shares such Company Common Stock under the DGCL), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the Mergerdeficiency required to make such payments.
(b) Except as provided Promptly after the Effective Time (and in this Section 3.04(b), at any event within five (5) Business Days after the Effective Time), holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay mail to each stockholder whose shares were converted into the right to receive Merger Consideration pursuant to Section 3.1: (i) a letter of transmittal, in customary form, that shall specify that delivery of such Certificates or transfer of such Book Entry Shares shall be deemed to have occurred, and deliver risk of loss and title to the Certificates or Book Entry Shares, as promptly applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Book Entry Shares to the Paying Agent and (ii) instructions for use in effecting the surrender of the Certificates or transfer of the Book Entry Shares in exchange for payment of the Merger Consideration, the form and substance of which letter of transmittal and instructions shall be as possible after reasonably agreed to by the Effective TimeCompany and Parent and prepared prior to the Closing. Upon receipt of an “agent’s message” by the Paying Agent in connection with the transfer of a Book Entry Share or surrender of a Certificate for cancellation to the Paying Agent, in each case together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, and with such other documents as may be required pursuant to such instructions, the holder of such Book Entry Share or Certificate shall be entitled to receive in exchange therefor, subject to any required withholding of Taxes, the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Book Entry Share so transferred or Certificate so surrendered shall forthwith be cancelled. No interest will be paid to holders of Book Entry Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person or Certificates in whose name such Shares are registered.
(ii) With respect to Shares heldconnection with, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediariesaccrued on, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofConsideration. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person stockholder in whose name the Book Entry Share transferred or Certificate surrendered Shares in exchange therefor is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment such exchange that the Person requesting such payment exchange shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of stockholder owning the Shares Book Entry Share transferred or Certificate surrendered, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Paying Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than thirty (30) days or guaranteed by the United States and backed by the full faith and credit of the United States. Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid upon as Parent directs. No investment of the transfer Consideration Fund shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article III, and following any losses from any such investment, Parent shall promptly provide additional cash funds to the Paying Agent for the benefit of Shares the Company’s stockholders at the Effective Time in accordance with the terms hereof shall amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to have been paid in full satisfaction be part of all rights pertaining to the Shares formerly represented by such Shares. After Consideration Fund.
(d) At and after the Effective Time, there shall be no further registration transfers on the share transfer books of transfers the Company of Sharesthe shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or Book Entry Shares are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be cancelled and exchanged for the Merger Consideration pursuant to this Article III, except as otherwise provided by Law.
(de) Any portion of the Merger Consideration made available to Fund (including the Paying Agent pursuant to Section 3.04(a) (and proceeds of any interest or other income earned thereoninvestments thereof) that remains unclaimed by the holders of Shares twelve months former Company stockholders one (1) year after the Effective Time shall shall, to the extent permitted by applicable Law, be returned delivered to Parent, upon demand, and any such holder Parent or the Surviving Corporation for no consideration. Any Company stockholder owning Certificates or Book Entry Shares who has not exchanged such Shares for the Merger Consideration in accordance theretofore complied with this Section 3.04 prior Article III with respect to that time such Certificates or Book Entry Shares shall thereafter look only to Parent for payment of the their claim for Merger Consideration in respect of such Shares without any interest thereon. thereof.
(f) Notwithstanding the foregoing, Parent neither the Paying Agent nor any party hereto shall not be liable to any holder Person in respect of Shares for any amount paid cash from the Consideration Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawsLaw. Any amounts remaining unclaimed by holders of Shares immediately If any Certificate or Book Entry Share shall not have been surrendered or transferred, respectively, prior to such time when the amounts date on which any Merger Consideration in respect thereof would otherwise escheat to or become the property of any Governmental Authority shall becomeEntity pursuant to applicable Law, any such Merger Consideration in respect of such Certificate or Book Entry Shares shall, to the extent permitted by Applicable applicable Law, become the property of Parent free or the Surviving Corporation, and clear any stockholder of such Certificate or Book Entry Share who has not theretofore complied with this Article III with respect thereto shall thereafter look only to Parent for payment of their claim for Merger Consideration in respect thereof.
(g) If any claims Certificate shall have been lost, stolen or interest destroyed, upon the making of any an affidavit of that fact (which affidavit shall be in a form reasonably satisfactory to Parent and the Paying Agent) by the Person previously claiming such certificate to be lost, stolen or destroyed, the Paying Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which such Person is entitled theretoin respect of such Certificate pursuant to this Article III.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent CVS and Caremark shall appoint a bank or trust company to act as mutually acceptable agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Caremark Stock (the Shares “Certificates”) or (ii) uncertificated shares of Caremark Stock (the “Uncertificated Shares”). CVS shall (x) deposit with the Exchange Agent, to be held in trust for the holders of Caremark Stock, certificates (if such shares shall be certificated) representing shares of CVS Stock issuable pursuant to Section 3.03(a2.04 in exchange for outstanding shares of Caremark Stock and (y) make available to the Exchange Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.07 and any dividends or other distributions pursuant to Section 2.05(f), in each case, to be paid in respect of the Certificates and the Uncertificated Shares. Promptly after (and in any event no later than the first Business Day after) the Acceptance DateEffective Time, Parent CVS shall depositsend, or shall cause the Exchange Agent to send, to each holder of shares of Caremark Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be depositedeffected, with the Depository Agent cash sufficient to make the payment and risk of loss and title shall pass, only upon proper delivery of the aggregate Offer Price payable pursuant to Section 2.01(d). As Certificates or transfer of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Uncertificated Shares to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used Exchange Agent) for any purpose other than to pay the Offer Price use in the Offer and the Merger Consideration to holders of Shares in the Mergersuch exchange.
(b) Except Each holder of shares of Caremark Stock shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as provided the Exchange Agent may reasonably request) in this the case of a book-entry transfer of Uncertificated Shares, the aggregate Merger Consideration that such holder has a right to receive pursuant to Section 3.04(b)2.04. The shares of CVS Stock constituting part of such Merger Consideration, at CVS’s option, shall be in uncertificated book-entry form, unless a physical certificate is requested by a holder of shares of Caremark Stock or is otherwise required under Applicable Law. As a result of the Merger, at the Effective Time, holders all shares of Shares Caremark Stock shall not cease to be required outstanding and each holder thereof shall cease to take have any action rights with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agentthereto, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only except the right to receive the applicable Merger Consideration as contemplated by payable in respect thereof and any dividends or other distributions payable in respect thereof in accordance with Section 3.03(a2.05(f).
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After At the Effective Time, there shall be no further registration of transfers of Sharesshares of Caremark Stock that were outstanding prior to the Merger. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration payable in respect thereof provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.05(a) that remains unclaimed by the holders of Shares twelve shares of Caremark Stock six months after the Effective Time shall be returned to ParentCVS, upon demand, and any such holder who has not exchanged such Shares shares of Caremark Stock for the Merger Consideration in accordance with this Section 3.04 2.05 prior to that time shall thereafter look only to Parent CVS for payment of the Merger Consideration Consideration, and any dividends and distributions with respect thereto, in respect of such Shares shares without any interest thereon. Notwithstanding the foregoing, Parent CVS shall not be liable to any holder of Shares shares of Caremark Stock for any amount amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Caremark Stock six years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, to the extent permitted by Applicable Law, the property of Parent CVS, free and clear of any claims or interest of any Person previously entitled thereto.
(f) No dividends or other distributions with respect to securities of CVS constituting part of the Merger Consideration, and no cash payment in lieu of fractional shares as provided in Section 2.07, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section. Following such surrender or transfer, there shall be paid, without interest, to the Person in whose name the securities of CVS have been registered, (i) at the time of such surrender or transfer, the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.07 and the amount of all dividends or other distributions with a record date after the Effective Time previously paid or payable on the date of such surrender with respect to such securities, and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time and prior to surrender or transfer and with a payment date subsequent to surrender or transfer payable with respect to such securities.
Appears in 1 contract
Sources: Merger Agreement (Caremark Rx Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Company (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day afteri) the Acceptance Certificates and (ii) the Uncertificated Shares. On the Closing Date, Parent or one of its Affiliates shall depositdeliver, or shall cause to be depositeddelivered to, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay Agent, as needed, the aggregate Merger Consideration payable pursuant to Section 3.03(a) in respect of all the Shares of the Company represented by the Certificates and the Uncertificated Shares in accordance with this Agreement (together with the amount deposited pursuant to the immediately preceding sentencesuch cash, the “Payment Consideration Fund”). In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 2.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount equal to the deficiency required to make such payments. The Payment Consideration Fund shall not be used for any purpose other than to pay purpose. Promptly after the Offer Price Effective Time (and in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(bany event within five Business Days), at the Effective TimeParent shall send, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent or shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each record holder of Shares at the Effective TimeTime a letter of transmittal and instructions (which shall be in customary form and shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate (or such other materials as contemplated in Section 2.09), together with a properly completed and validly executed letter of transmittal and such other documents as may be reasonably requested by the Paying Agent, or (ii) 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, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a)Certificate or for each such Uncertificated Share. Until so surrendered or transferred, as the case may be, and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only subject to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender terms of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.052.04, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If payable in respect thereof. No interest shall be paid or shall accrue on the payment cash payable upon the surrender or transfer of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Certificate or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Uncertificated Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Sources: Merger Agreement (Pacific Biosciences of California, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as an agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging certificates representing Company Shares (a “Certificate”) for the Merger Consideration the Shares consideration set forth in Section 2.1 (i) through Section 2.1(d)(iv). The shares of Parent Common and cash to be received as consideration pursuant to Section 3.03(a2.1(d) (i) through Section 2.1(d)(v), together with cash in lieu of fractional shares as specified in Section 2.8, is referred to herein as the “Closing Merger Consideration.” Parent shall make available to the Exchange Agent, as needed, the Closing Merger Consideration to be paid in respect of Company Shares (disregarding for such purpose any Company Shares that may potentially be dissenting shares pursuant to Section 2.6, but less the portions of the Closing Merger Consideration that are Escrow Cash and Escrow Shares to be deposited in the Escrow Fund (as defined in Section 9.2(a)) and less the portions of the Closing Merger Consideration that are to be deposited in the Earn Out Escrow), together with any dividends, interest or other distributions payable pursuant to Section 2.5(g). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositsend, or shall cause the Exchange Agent to send, to each holder of record of Company Shares at the Effective Time a letter of transmittal for use in such exchange (which shall specify that the delivery shall be depositedeffected, with and risk of loss and title shall pass, only upon proper delivery of the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant Certificates to the immediately preceding sentenceExchange Agent, shall explain that the “Payment Fund”Securityholders are bound by the indemnification provisions of ARTICLE IX, shall explain how all requirements under Section 2.5(c) below may be met, and how withholding may be avoided, or if not avoided, will be calculated under Section 2.9 below). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b)Holders of Company Shares (such holders, at together with the Effective Time, holders of Shares shall not be required Company Options and Company Warrants, the “Securityholders”) whose rights have been converted into rights to take any action with respect receive the Closing Merger Consideration, upon surrender to the exchange Exchange Agent of their Shares for the Merger Consideration.
a Certificate or Certificates representing Company Shares, together with a properly completed letter of transmittal covering such Company Shares, will be entitled to receive (i) Any holder the Closing Merger Consideration payable in respect of such Company Shares held (less the portions of the Closing Merger Consideration that are Escrow Cash and Escrow Shares to be deposited in direct registry form through the Company’s transfer agentEscrow Fund and less the portions of the Closing Merger Consideration that are to be deposited in the Earn Out Escrow), Equiniti Trust Companyand (ii) any dividends or other distributions to which such holders are entitled under Section 2.5(g). Until so surrendered, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (each Certificate that has been converted into the “Company Transfer Agent”right to receive the Closing Merger Consideration pursuant to Section 2.1(d) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable such Closing Merger Consideration as contemplated by and the right to receive any dividends or other distributions payable pursuant to Section 3.03(a2.5(g).
(ivc) If any portion of the payment of any Closing Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of Company Shares represented by the Certificate or Certificates surrendered in exchange therefor, it shall be a condition to such payment that the Certificate or Certificates so surrendered shall be properly endorsed or otherwise be in proper form for transfer and accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment shall pay to the Exchange Agent any transfer or other taxes required as a result of such payment to a Person other than the registered holder of such Company Shares surrendered, or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Company Shares. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the consideration provided for and in accordance with the procedures set forth in this ARTICLE II.
(de) Any portion of the Closing Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon2.5(a) that remains unclaimed by the holders of Company Shares twelve months sixty (60) days after the Effective Time shall be automatically returned to Parent, upon demand, and any such holder who has not exchanged such holder’s Company Shares for the Closing Merger Consideration in accordance with this Section 3.04 2.5 prior to that time shall thereafter look only to Parent for payment of the Closing Merger Consideration in respect of such Shares without any interest thereonholder’s Company Shares. Notwithstanding the foregoing, Parent neither Parent, the Company nor the Surviving Corporation shall not be liable to any holder of Company Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Company Shares immediately twelve (12) months after the Effective Time (or such earlier date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomegovernmental entity) shall, to the extent permitted by Applicable Lawapplicable law, become the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Closing Merger Consideration made available to the Exchange Agent pursuant to Section 2.5(a) to pay for Company Shares for which appraisal rights have been perfected shall be returned to Parent upon demand to the extent Parent is required to deposit shares of Parent Common with the Escrow Agent pursuant to Section 2.6.
(g) No dividends, interest or other distributions with respect to Parent Common constituting part of the Closing Merger Consideration shall be paid to the holder of any unsurrendered Certificates until such Certificates are surrendered as provided in this Section 2.5 and all such dividends, interest and other distributions shall be deposited with the Exchange Agent. Upon such surrender, there shall be paid, without interest, to the Person in whose name the Certificates representing shares of Parent Common into which such Company Shares were converted are registered, all dividends, interest and other distributions payable in respect of such shares of Parent Common on a date subsequent to, and in respect of a record date after, the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for: (i) the Shares pursuant Certificates, or (ii) book-entry shares which immediately prior to Section 3.03(athe Effective Time represented the shares of Company Common Stock (the “Book-Entry Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of At the Effective Time, Parent shall deposit, or shall cause the Surviving Corporation to be depositeddeposit, with the Paying Agent cash Exchange Agent, sufficient funds to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Company Common Stock represented by the Certificates and the Book-Entry Shares (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under Section 2.1(b), Parent shall deposit or shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of shares of Company Common Stock for the Merger Consideration Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to holders send, to each record holder of shares of Company Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Book-Entry Shares to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Common Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
Consideration shall be entitled to receive the Merger Consideration in respect of the Company Common Stock represented by a Certificate or Book-Entry Share upon (i) Any holder surrender to the Exchange Agent of Shares held in direct registry form through a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as may reasonably be requested by the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Exchange Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
or (ii) With respect to Shares held, directly receipt of an “agent’s message” by the Exchange Agent (or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary thirdevidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of Book-party intermediaries Entry Shares. Until so surrendered or transferred, as the case may be, and subject to ensure that the Paying Agent will transmit to DTC terms set forth in Section 2.3, each such Certificate or its nominees Book-Entry Share, as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTCapplicable, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)payable in respect thereof. No interest shall be paid or accrued on the cash payable upon the surrender or transfer of any Certificate or Book-Entry Share. Upon payment of the Merger Consideration pursuant to the provisions of this ARTICLE II, each Certificate or Book-Entry Share so surrendered shall immediately be cancelled.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Book-Entry Share, as applicable, is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Book-Entry Share shall be properly transferred, and (ii) the Person requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes Tax required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrenderedsuch Certificate or Book-Entry Share, as applicable, or shall have established establish to the reasonable satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the surrender of Certificates or transfer of 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 Shares shares of Company Common Stock formerly represented by such Certificate or Book-Entry Shares. After , and from and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this ARTICLE II.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve shares of Company Common Stock six (6) months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.2 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares shares of Company Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Company Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Parent, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and the Effective Time, in any event no later each case, other than the first Business Day after) the Acceptance Date, Parent shall deposit, Cancelled Shares and except for any Dissenting Shares. Prior to or shall cause to be deposited, substantially concurrently with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit or shall cause to be depositeddeposited (i) with the Paying Agent, an aggregate amount of cash that, when taken together with cash available on the Company’s balance sheet that is deposited with the Paying Agent cash at the Effective time, is sufficient to pay the aggregate Merger Consideration payable required to be paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”) and (ii) with the Company, cash in an amount sufficient for the Company to pay the aggregate Vested RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Compensatory Vested Award Fund”); provided that the Company shall, and shall cause its Subsidiaries to, at the written request of Parent, deposit with the Paying Agent at the Closing such portion of the aggregate Merger Consideration, or fund such portion of the aggregate Vested RSU Consideration from the Company Cash on Hand as specified in such request. In the event the Exchange Fund or the Compensatory Vested Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Paying Agent shall, pursuant to irrevocable instructions, deliver the aggregate Merger Consideration contemplated to be issued pursuant to Section 3.03(a) (together with 3.01 out of the amount deposited Exchange Fund. Parent shall cause the Surviving Corporation to pay the Vested RSU Consideration contemplated to be paid pursuant to Section 3.05 out of the immediately preceding sentence, the “Payment Compensatory Vested Award Fund”). The Payment Exchange Fund and the Compensatory Vested Award Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time (and in this Section 3.04(b), at any event not later than the third (3rd) Business Day following the Effective Time), holders Parent will direct the Paying Agent to send to each holder of Shares shall not be required to take any action with respect record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or customary and effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates (or customary and effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, in exchange of their Shares for the Merger ConsiderationConsideration in such form as Parent and the Company may reasonably agree.
(ic) Any Upon the surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof) or a Book-Entry Share, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or by the Paying Agent, the holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate or Book-Entry Share shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable, the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates or Book-Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment In the event of a transfer of ownership of Company Common Stock that is not registered in the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender transfer records of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, payment of the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the appropriate amount of Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to may be made to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered Shares is registered on the stock transfer books of the Companyregistered, it if such Certificate shall be a condition of payment that the Person requesting such payment shall have paid properly endorsed or otherwise be in proper form for transfer (and accompanied by all transfer and other similar Taxes documents reasonably required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Paying Agent) or such Book-Entry Share shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been be properly transferred. No interest shall be paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have accrue on any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid cash payable upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property surrender of any Governmental Authority shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims Certificate or interest of any Person previously entitled theretoBook-Entry Share.
Appears in 1 contract
Sources: Merger Agreement (Model N, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Exchange Agent”) for purposes of paying and enter into an exchange agent agreement with the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock (each a “Certificate”) or (ii) uncertificated shares of Company Stock which immediately prior to the Shares pursuant Effective Time were registered to Section 3.03(aa holder on the stock transfer books of the Company (the “Uncertificated Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositdeposit with the Exchange Agent, for the benefit of the holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock issuable pursuant to Section 2.04 and (ii) cash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders are entitled pursuant to Section 2.09. Promptly after the Effective Time and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Parent Common Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable issued or paid pursuant to Section 3.03(a) (together with this Article 2 out of the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”)Exchange Fund in accordance herewith. The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer and Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the Merger Consideration dividends or other distributions to which holders of Shares Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the Mergerproperty of, and paid to, Parent upon termination of the Exchange Fund.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Consideration shall be entitled to receive, and Parent shall cause upon (i) surrender to the Paying Exchange Agent to pay and deliver of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as promptly as possible after the Effective TimeExchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which in respect of each share of Company Stock represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of Certificate or Uncertificated Share (A) the applicable Merger Consideration and (B) any cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to such Shares shall thereto as contemplated by Section 2.09 and Section 2.06(f), as applicable. The shares of Parent Common Stock constituting Merger Consideration shall, at Parent’s option, be made only to the Person in whose name such Shares are registereduncertificated book-entry form, unless a physical certificate is required under Applicable Law.
(iic) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender If any portion of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners (or cash in lieu of such Shares held, directly any fractional shares of Parent Common Stock or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance any dividends and distributions with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as respect thereto contemplated by this Section 3.04(bSection 2.09 or Section 2.06(f), as applicable) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and other or similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such transfer or similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Company or the Exchange Agent for any reason, they shall be cancelled and exchanged for the applicable Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.09 and Section 2.06(f), as applicable) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares shares of Company Stock twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent or as otherwise instructed by Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the applicable Merger Consideration in accordance with this Section 3.04 Section 2.06 prior to that such time shall thereafter look only to Parent for payment of the such Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect of such Shares thereto as contemplated by Section 2.09 and Section 2.06(f), as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including, after the Closing, the Surviving Company and its Subsidiaries) shall not be liable to any holder of Shares shares of Company Stock for any amount amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.06, and in any event within two (2) Business Days of such surrender or transfer, the Exchange Agent shall promptly pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.09, as applicable, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.06.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Stock in connection with the Mergers, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 1 contract
Sources: Merger Agreement (Morgan Stanley)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a United States bank or and trust company to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price reasonably acceptable to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and Company as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). The Company and Parent shall enter into a Paying Agent agreement with the Paying Agent which agreement shall set forth the duties, responsibilities and obligations of the Paying Agent consistent with the terms of this Agreement and otherwise reasonably acceptable to the Company and Parent. Promptly after the Effective Time on the Closing Date, Parent shall make available to the Paying Agent, as needed, the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares, in the aggregate, in an amount sufficient to pay the Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash, the “Consideration Fund”). In addition, Parent shall make available as necessary cash in an amount sufficient for payment of any dividends or distributions declared, but not paid, by the Company prior to the Acceptance Time in respect of the Shares in accordance with this Agreement. In the event the Consideration Fund shall be insufficient to pay the Merger Consideration (including on account of any Merger Consideration returned to Parent pursuant to Section 3.03(a3.03(g)), Parent shall promptly deliver, or cause to be delivered, additional funds to the Paying Agent in an amount that is equal to the deficiency required to make such payments. Promptly after the Effective Time (and in any event no later than within two Business Days after the first Business Day after) the Acceptance DateEffective Time), Parent shall depositsend, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after send, to each holder of Shares at the Effective TimeTime a letter of transmittal and instructions in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange, the form and substance of such letter of transmittal and instructions shall be reasonably agreed to by Parent and the Company and prepared prior to the Closing.
(b) Each holder of Shares that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) 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, the Merger Consideration to which payable for each Share represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to Certificate or for each such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereofUncertificated Share. Until exchanged so surrendered or transferred, as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05the case may be, each such Certificate or Uncertificated Share shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Consideration. No interest shall be paid or shall accrue on the cash payable upon surrender of any Shares.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Paying Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Paying Agent and Parent that such Taxes either have Tax has been paid or are is not applicablepayable.
(d) The cash in the Consideration Fund shall be invested by the Paying Agent as directed by Parent; provided, however, that any such investments shall be in short-term obligations of the United States with maturities of no more than 30 days or guaranteed by the United States and backed by the full faith and credit of the United States. None Earnings on the Consideration Fund in excess of the amounts payable to the Company’s former stockholders shall be the sole and exclusive property of Parent and shall be paid as Parent directs. No investment of the Consideration Fund shall relieve Parent, Purchaser or the Surviving Corporation or the Paying Agent from promptly making the payments required by this Article 3, and following any losses from any such investment, Parent shall have any liability promptly provide additional cash funds to the Paying Agent for the transfer and other similar Taxes described benefit of the Company’s stockholders at the Effective Time in this Section 3.04(b)(iv) under any circumstancethe amount of such losses to the extent the funds in the Consideration Fund are insufficient for such purposes, which additional funds will be deemed to be part of the Consideration Fund.
(ce) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a3.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months one year after the Effective Time Time, to the extent permitted by Applicable Law, shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 3.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, neither Parent nor any of its Affiliates shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares two years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Authority) shall become, become to the extent permitted by Applicable Law, Law the property of Parent or the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to Parent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (AdvancePierre Foods Holdings, Inc.)
Surrender and Payment. (a) Pursuant to Section 3.2 of the Separation and Distribution Agreement, the Exchange Agent shall hold, for the account of the relevant SpinCo stockholders, book-entry shares representing all of the outstanding shares of SpinCo Common Stock distributed in the Distribution.
(b) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company enter into an exchange agreement in customary form (the “Exchange Agent Agreement”) with the transfer agent of Parent to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose payment of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a)Shares. Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, Substantially concurrently with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay Exchange Agent, for the aggregate benefit of the SpinCo Holders, for exchange in accordance with this Section 3.2(b) and Section 3.3 promptly after the Effective Time, book-entry shares representing the Merger Consideration payable Shares issuable to the SpinCo Holders pursuant to Section 3.03(a3.1(a)(i) (such book-entry shares of Parent Stock, together with any cash received by the amount deposited Exchange Agent in respect of dividends or distributions with respect thereto pursuant to the immediately preceding sentenceSection 3.2(g), as applicable, the “Payment Exchange Fund”). Following the Effective Time, xi the Exchange Agent shall deliver, pursuant to instructions from Parent (the “Parent Instructions”), the Merger Consideration Shares to be issued pursuant to this Article III out of the Exchange Fund. The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price as specified in the Offer and the Merger Consideration to holders of Shares in the Mergerthis Section 3.2(b).
(bc) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as As promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by ParentParent shall cause the Exchange Agent to deliver to each SpinCo Holder, from the Exchange Fund, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners shares of Parent Common Stock issuable in respect of such Shares held, directly or indirectly through DTC, shares of SpinCo Common Stock pursuant to the Merger. Each SpinCo Holder shall become be entitled to receive in respect of such shares of SpinCo Common Stock held by such Person a book-entry authorization representing the number of whole shares of Parent Common Stock that such holder has the right to receive pursuant to Section 3.03(a3.1(a)(i) (and any dividends or distributions and other amounts pursuant to Section 3.2(g)).
(iiid) No interest Each SpinCo Holder shall accrue or be paid on entitled to receive the Per Share Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit respect of the holder thereofSpinCo Common Stock upon 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). Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, so transferred each Share such share of SpinCo Common Stock shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Per Share Merger Consideration as contemplated by payable in respect thereof. Upon payment of the Per Share Merger Consideration pursuant to the provisions of this Section 3.03(a)3.2, each share of SpinCo Common Stock so transferred shall immediately be cancelled.
(ive) If The Parent Instructions will instruct the payment Exchange Agent to designate as Restricted Shares a number of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books shares of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any each SpinCo Holder’s aggregate portion of the Merger Consideration made available Shares equal to the Paying Agent pursuant Restricted Portion, which shares will include a restrictive legend on its book-entry position describing the Transfer Restriction. For so long as the Restricted Shares remain subject to the forfeiture conditions specified in Section 3.04(a3.3, the holder thereof will be entitled to (i) exercise the voting rights of such Restricted Shares and (and ii) receive any interest dividends or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration distributions payable in respect of such Restricted Shares. Holders of the Restricted Shares without will not be entitled to transfer such shares for so long as such shares are subject to forfeiture pursuant to Section 3.3. The book-entry positions of each Restricted Share will include a restrictive legend that such shares may not be transferred until such time as the forfeiture conditions with respect to such shares lapse (the “Transfer Restriction”). Any attempted transfer in violation of the Transfer Restriction will be void ab initio, and the Exchange Agent will not process any interest thereontransfers of the Restricted Shares (other than the forfeiture of such shares pursuant to Section 3.3) for so long as such shares remain Restricted Shares.
(f) For each SpinCo Holder, the Exchange Agent will include in the book-entry position a restrictive legend as set forth below in respect of the Restricted Shares. Notwithstanding the foregoing, Parent The Exchange Agent shall not be liable entitled to vote or exercise any holder rights of Shares for any amount paid ownership with respect to a public official pursuant Parent Common Stock held by it from time to applicable abandoned propertytime hereunder or under the Exchange Agent Agreement. THE SECURITIES REPRESENTED BY THIS BOOK-ENTRY POSITION ARE SUBJECT FORFEITURE PURSUANT TO AN AGREEMENT THAT ALSO CONTAINS RESTRICTIONS ON TRANSFER. A COPY OF THE AGREEMENT WILL BE FURNISHED TO ANY INTERESTED PARTY BY THE COMPANY UPON WRITTEN REQUEST, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoWITHOUT CHARGE.”
Appears in 1 contract
Sources: Merger Agreement (Flyexclusive Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent (Paying Agent in the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Merger (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Company Common Stock issued and outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and the Effective Time, in any event no later each case, other than the first Business Day after) the Acceptance Date, Parent shall deposit, Cancelled Shares and except for any Dissenting Shares. At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, deposit or shall cause to be deposited, deposited with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant required to Section 3.03(a) be paid by the Paying Agent in accordance with this Agreement in respect of the Company Common Stock, excluding, for the avoidance of doubt any Cancelled Shares and Dissenting Shares (together with the amount deposited pursuant such cash shall be referred to the immediately preceding sentence, in this Agreement as the “Payment Exchange Fund”). In the event the Exchange Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01(a), Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Payment Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. The Exchange Fund shall not be used for any purpose other than purpose. Parent shall cause the Surviving Corporation through the Surviving Corporation’s payroll system (or, in the case of Company Compensatory Awards granted to non-employee directors, through the Surviving Corporation’s accounts payable) to pay to the Offer Price in the Offer and the Merger Consideration to holders of Shares Company Compensatory Awards the amounts set forth in Section 3.05 following the MergerEffective Time at such time as such amounts become payable.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will cause the Paying Agent to send to each holder of Shares shall not be required to take any action with respect record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares, as applicable, in exchange of their Shares for the Merger Consideration, in each case of clause (i) and (ii), in such form as Parent and the Company may reasonably agree.
(ic) Any Upon the surrender of a Certificate (or effective affidavit of loss in lieu thereof) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, such Certificate or Book-Entry Share shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within two (2) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates or Book-Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the applicable Company, payment of the appropriate amount of Merger Consideration with respect to such Shares shall may be made only to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent) or such Book-Entry Share shall be properly transferred. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate (or effective affidavit of loss in lieu thereof) or Book-Entry Share. Until so surrendered, outstanding Certificates or Book-Entry Shares are registeredwill be deemed from and after the Effective Time to evidence only the right to receive the Merger Consideration, without interest thereon, payable in respect thereof pursuant to this Agreement.
(iid) With respect Prior to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”)Effective Time, Parent and the Company shall cooperate to establish procedures with the Paying Agent, Agent and the Depository Trust Company (“DTC, DTC’s nominees and such other necessary third-party intermediaries ”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time on the Closing Date, the Paying Agent will transmit to DTC or its nominees as promptly as practicable after on the Effective Time, upon surrender Closing Date an amount in cash in immediately available funds equal to (A) the number of shares of Company Common Stock (other than Cancelled Shares and Dissenting Shares) held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed nominee immediately prior to the Effective Time multiplied by Parent(B) the Merger Consideration (such amount, the Company“DTC Payment”), and (ii) if the Closing occurs after 2:00 p.m. Eastern time on the Closing Date, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration Agent will transmit to which the beneficial owners of such Shares held, directly DTC or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid its nominee on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(bfirst (1st) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time Business Day after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person Closing Date an amount in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established cash in immediately available funds equal to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceDTC Payment.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an exchange agent reasonably acceptable to act as agent the Company (the “Depository Exchange Agent”) for purposes of paying and enter into an exchange agent agreement with the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock (each a “Certificate”) or (ii) uncertificated shares of Company Stock which immediately prior to the Shares pursuant Effective Time were registered to Section 3.03(aa holder on the stock transfer books of the Company (the “Uncertificated Shares”). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, At or shall cause prior to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall depositdeposit with the Exchange Agent, for the benefit of the holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock issuable pursuant to Section 2.04 and (ii) cash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders are entitled pursuant to Section 2.09. Promptly after the Effective Time and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Parent Common Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable issued or paid pursuant to Section 3.03(a) (together with this Article 2 out of the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”)Exchange Fund in accordance herewith. The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price purpose. The Exchange Agent shall invest any cash included in the Offer and Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the Merger Consideration dividends or other distributions to which holders of Shares Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the Mergerproperty of, and paid to, Parent upon termination of the Exchange Fund.
(b) Except as provided in this Section 3.04(b), at Each holder of shares of Company Stock that have been converted into the Effective Time, holders of Shares shall not be required right to take any action with respect to the exchange of their Shares for receive the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Consideration shall be entitled to receive, and Parent shall cause upon (i) surrender to the Paying Exchange Agent to pay and deliver of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as promptly as possible after the Effective TimeExchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration to which in respect of each share of Company Stock represented by such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of Certificate or Uncertificated Share (A) the applicable Merger Consideration and (B) any cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration thereto as contemplated by Section 3.03(a2.09 and Section 2.06(f), as applicable. The shares of Parent Common Stock constituting Merger Consideration shall, at Parent’s option, be in uncertificated book-entry form, unless a physical certificate is required under Applicable Law.
(ivc) If any portion of the payment Merger Consideration (or cash in lieu of any Merger Consideration fractional shares of Parent Common Stock or any dividends and distributions with respect thereto contemplated by Section 2.09 or Section 2.06(f), as applicable) is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and other or similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such transfer or similar Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After From and after the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Stock on the records of the Company. If, after the Effective Time, Certificates or Uncertificated Shares are presented to Parent, the Surviving Company or the Exchange Agent for any reason, they shall be cancelled and exchanged for the applicable Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect to the Merger Consideration as contemplated by Section 2.09 and Section 2.06(f), as applicable) with respect thereto in accordance with the procedures set forth in, or as otherwise contemplated by, this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares shares of Company Stock twelve (12) months after following the Effective Time Closing Date shall be returned delivered to Parent or as otherwise instructed by Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Stock for the applicable Merger Consideration in accordance with this Section 3.04 2.06 prior to that such time shall thereafter look only to Parent for payment of the such Merger Consideration (and cash in lieu of any fractional shares of Parent Common Stock and any dividends and distributions with respect of such Shares thereto as contemplated by Section 2.09 and Section 2.06(f), as applicable), without any interest thereon. Notwithstanding the foregoing, Parent and its Subsidiaries (including, after the Closing, the Surviving Company and its Subsidiaries) shall not be liable to any holder of Shares shares of Company Stock for any amount amounts properly paid to a public official pursuant to in compliance with applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares shares of Company Stock 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
(f) Following the surrender of any Certificates or the transfer of any Uncertificated Shares as provided in this Section 2.06, and in any event within two (2) Business Days of such surrender or transfer, the Exchange Agent shall promptly pay, or cause to be paid, without interest, to the Person in whose name the shares of Parent Common Stock constituting the Merger Consideration have been registered, (i) in connection with the payment of the Merger Consideration, (x) the amount of any cash payable in lieu of fractional shares to which such Person is entitled pursuant to Section 2.09, as applicable, and (y) the aggregate amount of all dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date on or after the Effective Time that were paid prior to the time of such surrender or transfer, and (ii) at the appropriate payment date after the payment of the Merger Consideration, the amount of all dividends or other distributions payable with respect to whole shares of Parent Common Stock constituting the Merger Consideration with a record date on or after the Effective Time and prior to the time of such surrender or transfer and with a payment date subsequent to the time of such surrender or transfer. No dividends or other distributions with respect to shares of Parent Common Stock constituting the Merger Consideration, and no cash payment in lieu of fractional shares pursuant to Section 2.09, as applicable, shall be paid to the holder of any Certificates not surrendered or of any Uncertificated Shares not transferred until such Certificates or Uncertificated Shares are surrendered or transferred, as the case may be, as provided in this Section 2.06.
(g) The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Stock in connection with the Mergers, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.
Appears in 1 contract
Sources: Merger Agreement (Eaton Vance Corp)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint select a bank or trust company nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably acceptable to the Company) to act as agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent Paying Agent (the “Paying Agent”) for the purpose payment of exchanging for the Merger Consideration in respect of each share of Company Common Stock outstanding immediately prior to the Shares pursuant Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, in each case, other than the Cancelled Shares, any Dissenting Shares and the Gato Shares. At or prior to the Closing, Parent shall deposit, deposit or shall cause to be deposited, deposited (i) with the Paying Agent Agent, cash in an amount sufficient to pay the aggregate Merger Consideration payable pursuant (other than the Employee RS Award Consideration) required to Section 3.03(abe paid by the Paying Agent in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Exchange Fund”), and (ii) (together with the Company, cash in an amount deposited pursuant sufficient to pay the immediately preceding sentence, aggregate Option Consideration and Employee RS Award Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the “Payment Compensatory Award Fund”). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01 or Section 3.05, respectively, Parent shall promptly deposit or cause to be deposited additional funds with the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Payment Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration (other than the Employee RS Award Consideration) contemplated to be issued pursuant to Section 3.01 out of the Exchange Fund. Parent shall cause the Surviving Corporation to pay the Option Consideration and Employee RS Award Consideration contemplated to be paid pursuant to Section 3.05 out of the Compensatory Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second (2nd) Business Day following the Effective Time, holders Parent will direct the Paying Agent to send to each holder of Shares shall not be required to take any action with respect record of shares of Company Common Stock as of immediately prior to the exchange of their Effective Time (other than the Cancelled Shares and the Underlying Employee Restricted Shares and except for any Dissenting Shares and the Merger Consideration.Gato Shares)
(i) Any holder a letter of Shares held in direct registry form through the Company’s transfer agenttransmittal (which shall specify that delivery shall be effected, Equiniti Trust Companyand risk of loss and title shall pass, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures only upon proper delivery of the Certificates (or customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent) or Book-Entry Shares, as applicable, to the Paying Agent Agent) in such form as Parent and the Company Transfer may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying Agent, automatically upon and (ii) instructions for use in effecting the surrender of Certificates (or customary and effective affidavits of loss in lieu thereof which is reasonably acceptable to Parent) or Book-Entry Shares, as applicable, in exchange for the Merger Consideration in such form as Parent and the Company may reasonably agree.
(c) Upon the surrender of a Certificate (or delivery of a customary affidavit of loss in lieu thereof which is reasonably acceptable to Parent) or Book-Entry Shares, as applicable, for cancellation to the Paying Agent, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions or by the Paying Agent, the holder of the shares of Company Common Stock represented by such Certificate or such Book-Entry Share as of immediately prior to the Effective Time, Time (other than the Underlying Employee Restricted Shares) shall be entitled to receive, receive in exchange therefor and Parent shall cause the Paying Agent to pay and deliver in exchange therefor, as promptly as possible after the Effective Timepracticable (but in any event within three (3) Business Days), the Merger Consideration pursuant to which such holder shall become entitled pursuant Section 3.03(a)the provisions of this Article III, and the Certificates or Book-Entry Shares so exchanged surrendered shall forthwith be forthwith canceled. Payment In the event of a transfer of ownership of Company Common Stock that is not registered in the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender transfer records of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, payment of the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the appropriate amount of Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to may be made to a Person other than the Person in whose name the Certificate or Book-Entry Share so surrendered Shares is registered on the stock transfer books of the Companyregistered, it subject to Section 3.02(e), if such Certificate shall be a condition of payment that the Person requesting such payment shall have paid properly endorsed or otherwise be in proper form for transfer (and accompanied by all transfer and other similar Taxes documents reasonably required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, Paying Agent) or such Book-Entry Share shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been be properly transferred. No interest shall be paid or are not applicable. None accrue on any cash payable upon surrender of Parent, Purchaser any Certificate or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of SharesBook-Entry Share.
(d) Any portion Prior to the Effective Time, Parent and the Company shall reasonably cooperate to establish procedures with the Paying Agent and the Depository Trust Company (“DTC”) to ensure that (i) if the Closing occurs at or prior to 2:00 p.m. Eastern time (or such other time as may be mutually agreed in writing by Parent and the Company) on the Closing Date, the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount in cash in immediately available funds equal to the number of shares of Company Common Stock held of record by DTC or such nominee immediately prior to the Effective Time (other than the Cancelled Shares and the Underlying Employee Restricted Shares and except for any Dissenting Shares and the Gato Shares) multiplied by the Merger Consideration made available to (such amount, the “DTC Payment”), and (ii) if the Closing occurs after such time on the Closing Date, the Paying Agent pursuant will transmit to Section 3.04(aDTC or its nominee on the first (1st) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months Business Day after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration Closing Date an amount in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration cash in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority shall become, available funds equal to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled theretoDTC Payment.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company an agent reasonably acceptable to act as agent the Company (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Exchange Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Merger.
(b) Except as provided in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time (i) certificates representing shares of Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”). The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agreement shall be in form and substance reasonably acceptable to the Company and Parent. Prior to the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, Parent shall make available to the Company, Exchange Agent the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the aggregate Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on in respect of the shares represented by such Certificates and the Uncertificated Shares. Such funds may be invested by the Exchange Agent as directed by Parent; provided that such funds shall only be invested in the manner provided in the Exchange Agent Agreement, and no such investment or losses thereon shall affect the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) Company Common Stock entitled to receive such consideration, and to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of the holder thereofholders of Company Common Stock entitled to receive such consideration. Until exchanged As promptly as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time practicable after the Effective Time (but no later than two Business Days thereafter), the Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and Parent and finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange (the “Letter of Transmittal”). The Company shall prepare in good faith and provide to Parent no later than three Business Days prior to the Closing Date a written statement setting forth in reasonable detail its good faith estimate of the total unrestricted cash of the Company and its Subsidiaries as of the Closing Date (the “Estimated Closing Date Cash”). At Closing, the Company shall wire to the Exchange Agent an amount of cash specified by the Parent (“Company Cash”), the proceeds of which will be used by the Exchange Agent to pay a portion of the Merger Consideration. At least one day prior to the Closing, the Parent shall deliver to the Company written notice of the amount of Company Cash to be wired to the Exchange Agent and appropriate wire instructions. The Company Cash shall not be greater than the amount of the Estimated Closing Date Cash.
(b) 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 (i) surrender to the Exchange Agent of a Certificate, together with a properly completed Letter of Transmittal, or (ii) 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, the Merger Consideration payable for each share of Company Common Stock represented by a Certificate or for each Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive the applicable such Merger Consideration as contemplated by Section 3.03(a)Consideration.
(ivc) If any portion of the payment of any Merger Consideration is to be made paid to a Person other than the Person in whose name the surrendered Shares Certificate or the transferred Uncertificated Share is registered on the stock transfer books of the Companyregistered, it shall be a condition of to such payment that (i) either such Certificate 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 requesting such payment shall have paid all pay to the Exchange Agent any transfer and or other similar Taxes required by reason as a result of the such payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, such Certificate or shall have established Uncertificated Share or establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstancepayable.
(cd) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Sharesshares of Company Common Stock. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation or the Exchange Agent, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(de) Any portion of the Merger Consideration made available to the Paying Exchange Agent pursuant to Section 3.04(a2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares shares of Company Common Stock twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares shares of Company Common Stock for the Merger Consideration in accordance with this Section 3.04 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares shares of Company Common Stock without any interest thereon. Notwithstanding .
(f) None of Parent, Merger Sub, the foregoingCompany, Parent the Surviving Corporation, the Exchange Agent or any other Person shall not be liable to any holder Person in respect of Shares for any amount paid portion of the Merger Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar lawslaw. Any amounts remaining unclaimed by such holders of Shares immediately prior to such time when the at which such amounts would otherwise escheat to or become property of any Governmental Authority Entity shall become, to the extent permitted by Applicable Law, the property of Parent the Surviving Corporation, free and clear of any all claims or of interest of any Person previously entitled thereto.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent BNC or Bank shall appoint a bank or trust company an agent, who shall be reasonably acceptable to Wilton to act as the agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration for the Shares pursuant to Section 3.03(aCertificates representing the shares of Wilton Common Stock (the “Exchange Agent”). Promptly On and after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment of the aggregate Offer Price payable pursuant to Section 2.01(d). As of the Effective Time, Parent BNC or Bank shall deposit, or shall cause to be deposited, deposit with the Paying Agent Exchange Agent, sufficient cash sufficient to pay the aggregate Merger Consideration that is payable pursuant to Section 3.03(a) in respect of all of the shares of Wilton Common Stock represented by the Certificates (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”) in amounts and at the times necessary for such payments. If for any reason the Payment Fund is inadequate to pay the amounts to which holders of shares shall be entitled under Section 2.1(d), BNC and Bank shall take all steps necessary to deposit in trust additional cash with the Exchange Agent sufficient to make all payments required under this Agreement, and BNC and the Surviving Corporation shall in any event be liable for the payment thereof. The Payment Fund shall not be used for any purpose other than to purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Offer Price Exchange Agent, in connection with the Offer and exchange of Shares for the Merger Consideration Consideration. Promptly after the Effective Time, BNC shall send, or shall cause the Exchange Agent to holders send, to each record holder of Shares shares of Wilton Common Stock at the Effective Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates to the Exchange Agent) for use in the Mergersuch exchange.
(b) Except Each holder of shares of Wilton Common Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive the Merger Consideration upon surrender to the Exchange Agent of a Certificate, together with a duly completed and validly executed letter of transmittal and such other documents as provided may reasonably be requested by the Exchange Agent. Until so surrendered or transferred, as the case may be, and subject to the terms set forth in this Section 3.04(b), at the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.052.2, each Share such Certificate shall be deemed at any time represent after the Effective Time to represent for all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If payable in respect thereof. No interest shall be paid or accrued on the payment cash payable upon the surrender or transfer of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the Certificate. Upon payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established pursuant to the satisfaction provisions of the Surviving Corporation that such Taxes either have been paid this Article II, each Certificate or are not applicable. None of Parent, Purchaser or the Surviving Corporation Certificates so surrendered shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceimmediately be cancelled.
(c) All Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares shares of Wilton Common Stock formerly represented by such Shares. After Certificate, and from and after the Effective Time, there shall be no further registration of or transfers of Sharesshares of Wilton Common Stock on the stock transfer books of the Surviving Corporation. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be cancelled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article II.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Payment Fund that remains unclaimed by the holders of Shares twelve (12) months after the Effective Time shall be returned to ParentBNC, upon demand, and any such holder who has not exchanged such Shares shares of Wilton Common Stock for the Merger Consideration in accordance with this Section 3.04 2.2 prior to that time shall thereafter look only to Parent BNC or Surviving Corporation for payment of the Merger Consideration in respect of such Shares without any interest thereonConsideration. Notwithstanding the foregoing, Parent BNC shall not be liable to any holder of Shares shares of Wilton Common Stock for any amount amounts paid to a public official pursuant to applicable abandoned property, escheat or similar lawsLaws. Any amounts remaining unclaimed by holders of Shares shares of Wilton Common Stock two (2) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority Entity) shall become, to the extent permitted by Applicable applicable Law, the property of Parent BNC or Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to BNC or Surviving Corporation, upon demand.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Bankwell Financial Group, Inc.)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act Mellon Investor Services LLC as the exchange agent (the “Depository Exchange Agent”) for purposes of paying and promptly following the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) for the purpose of exchanging for the Merger Consideration the Shares pursuant to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or Effective Time shall cause to be deposited, deposited with the Depository Agent Exchange Agent, in trust for the benefit of the holders of Company Common Stock, an amount of cash in U.S. dollars sufficient to pay, and shall make available to the payment Exchange Agent certificates representing the shares of Parent Common Stock sufficient to issue, the aggregate Offer Price Per Share Consideration payable and issuable pursuant to Section 3.01 and the Cashed Out Award Consideration payable pursuant to Section 2.01(d)3.06, payable, in the case of Company Common Stock, upon due surrender of the Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Common Stock represented by book-entry (“Book-Entry Shares”) and payable pursuant to the provisions of this Article 3. As of Following the Effective Time, Parent shall depositagrees to make available to the Exchange Agent, or shall cause from time to be depositedtime as needed, with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Merger Consideration payable any dividends and other distributions pursuant to Section 3.03(a) (together 3.02(g). Any cash and certificates representing Parent Common Stock deposited with the Exchange Agent (including the amount deposited of any dividends or other distributions payable with respect thereto and such cash in lieu of fractional shares to be paid pursuant to Section 3.03) shall be referred to in this Agreement as the immediately preceding sentence“Exchange Fund.” The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Per Share Consideration contemplated to be issued pursuant to Section 3.01 and the Cashed Out Award Consideration contemplated to be issued pursuant to Section 3.06(a) out of the Exchange Fund. Except as contemplated by this Section 3.02, the “Payment Fund”). The Payment Exchange Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the Mergerpurpose.
(b) Except As soon as provided reasonably practicable after the Effective Time and in this Section 3.04(b), at any event not later than the second Business Day following the Effective Time, holders Parent will cause the Exchange Agent to send to each holder of record of shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a letter of transmittal for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Exchange Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Exchange Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Per Share Consideration. Exchange of any Book-Entry Shares shall not be required to take any action effected in accordance with Parent’s customary procedures with respect to the exchange of their Shares for the Merger Considerationsecurities represented by book entry.
(ic) Any Each holder of Shares held in direct registry form through shares of Company Common Stock that have been converted into a right to receive the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, Per Share Consideration will be entitled to receivereceive in exchange therefor
(A) one or more shares of Parent Common Stock (which shall be in non-certificated book-entry form unless a physical certificate is requested) representing, in the aggregate, the whole number of shares of Parent Common Stock, if any, that such holder has the right to receive pursuant to Section 3.01 (after taking into account all shares of Company Common Stock then held by such holder) and/or (B) a check in the amount equal to the cash portion of the Per Share Consideration that such holder has the right to receive pursuant to Section 3.01 and Parent this Article 3, including cash payable in lieu of fractional shares pursuant to Section 3.03 and dividends and other distributions pursuant to Section 3.02(g) (less any required Tax withholding). Each holder of a Cashed Out Compensatory Award that has been converted into a right to receive cash will be entitled to receive in exchange therefor a check in the amount equal to the Cashed Out Award Consideration that such holder has the right to receive pursuant to Section 3.06(a) and this Article 3 (less any required Tax withholding). No interest shall cause the Paying Agent be paid or accrued on any Per Share Consideration or Cashed Out Award Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to pay and deliver as promptly as possible holders of Certificates or Company Stock Options. Until so surrendered, each such Certificate shall, after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) represent for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent all purposes only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)such Per Share Consideration.
(ivd) If the any cash payment of any Merger Consideration is to be made to a Person other than the Person in whose name the applicable surrendered Shares Certificate is registered on the stock transfer books of the Companyregistered, it shall be a condition of such payment that the Person requesting such payment shall have paid all pay any transfer and other similar Taxes required by reason of the making of such cash payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, surrendered Certificate or shall have established establish to the satisfaction of the Surviving Corporation Exchange Agent that such Taxes either have Tax has been paid or are is not applicablepayable. None If any portion of Parentthe Per Share Consideration is to be registered in the name of a Person other than the Person in whose name the applicable surrendered Certificate is registered, Purchaser it shall be a condition to the registration thereof that the surrendered Certificate shall be properly endorsed or the Surviving Corporation shall have any liability otherwise be in proper form for the transfer and that the Person requesting such delivery of the Per Share Consideration shall pay to the Exchange Agent any transfer Taxes required as a result of such registration in the name of a Person other similar Taxes described in this Section 3.04(b)(iv) under any circumstancethan the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(ce) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers Transfers of Sharesshares of Company Common Stock. From and after the Effective Time, the holders of Certificates representing shares of Company Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock except as otherwise provided in this Agreement or by Applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent, the Interim Surviving Corporation or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article 3.
(df) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) Exchange Fund that remains unclaimed by the holders of Shares twelve months shares of Company Common Stock or holders of Cashed Out Compensatory Awards after the one-year anniversary of the Effective Time shall be returned to Parent, upon demand, and any such . Any holder of shares of Company Common Stock who has not exchanged such Shares his shares of Company Common Stock for the Merger Per Share Consideration in accordance with this Section 3.04 3.02 and any holder of a Cashed Out Compensatory Award who has not received the Cashed Out Award Consideration in accordance with Section 3.06(a) prior to that time shall thereafter look only to Parent for payment delivery of the Merger Per Share Consideration or Cashed Out Award Consideration in respect of such Shares without any interest thereonholder’s shares of Company Common Stock or Cashed Out Compensatory Award. Notwithstanding the foregoing, Parent neither Parent, the Company nor the Interim Surviving Corporation shall not be liable to any Company Common Stock or holder of Shares Cashed Out Compensatory Awards for any amount paid Per Share Consideration or Cashed Out Award Consideration properly delivered to a public official pursuant to applicable abandoned property, escheat or similar property laws. Any amounts Per Share Consideration or Cashed Out Award Consideration remaining unclaimed by holders of Shares shares of Company Common Stock or holders of Cashed Out Compensatory Awards immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Authority shall becomeshall, to the extent permitted by Applicable Law, the become property of Parent free and clear of any claims or interest of any Person previously entitled thereto.
(g) No dividends or other distributions with respect to shares of Parent Common Stock issued in the First Merger shall be paid to the holder of any unsurrendered Certificates or Book-Entry Shares until such Certificates or Book-Entry Shares are surrendered as provided in this Section 3.02. Following such surrender, subject to the effect of escheat, Tax or other Applicable Law, there shall be paid, without interest, to the record holder of the shares of Parent Common Stock issued in exchange therefor (i) at the time of such surrender, an amount equal to all dividends and other distributions payable in respect of such shares of Parent Common Stock with a record date after the Effective Time and a payment date on or prior to the date of such surrender and not previously paid and (ii) at the appropriate payment date, an amount equal to the dividends or other distributions payable with respect to such shares of Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to such surrender. For purposes of dividends or other distributions in respect of shares of Parent Common Stock, all shares of Parent Common Stock to be issued pursuant to the First Merger (the “Stock Issuance”) and all shares of Parent Common Stock to be issued pursuant to Section 3.06(a) shall be entitled to dividends pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(h) Any portion of the Per Share Consideration deposited with the Exchange Agent pursuant to this Section 3.02 to pay for shares for which appraisal rights shall have been perfected shall be returned to Parent, upon demand.
(i) All Per Share Consideration or Cashed Out Award Consideration issued and paid upon conversion of the Company Common Stock or the Cashed Out Compensatory Awards, respectively, in accordance with the terms of this Agreement (including any cash paid pursuant to Section 3.03), shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Company Common Stock or Cashed Out Compensatory Awards, respectively.
Appears in 1 contract
Sources: Merger Agreement (Calix, Inc)
Surrender and Payment. (a) Prior to the Acceptance DateEffective Time, Parent shall appoint a bank or trust company to act as disbursing agent (the “Depository "Disbursing Agent”") for purposes the payment of paying Merger Consideration upon surrender of certificates representing the Shares. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.06(b), Parent shall deposit or cause to be deposited with the Disbursing Agent cash in an aggregate Offer Price amount necessary to make the payments pursuant to Section 3.06(b) to holders of Shares (such amounts being hereinafter referred to as the "Exchange Fund"). The Disbursing Agent shall invest the Exchange Fund as directed by Parent; provided that become entitled such investments shall be (i) direct obligations of the United States of America, (ii) obligations for which the full faith and credit of the United States of America is pledged to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”) provide for the purpose payment of exchanging for principal and interest, or (iii) commercial paper rated the Merger Consideration highest quality by either ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Corporation; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.03(a3.06(b). Promptly after (Any interest and in any event no later than the first Business Day after) the Acceptance Date, Parent other income resulting from such investment shall deposit, or shall cause to be deposited, with the Depository Agent cash sufficient to make the payment become a part of the aggregate Offer Price payable pursuant to Section 2.01(d). As Exchange Fund, and any amounts in excess of the Effective Time, Parent amounts payable under Section 3.06(b) shall deposit, or shall cause be promptly paid to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (together with the amount deposited pursuant to the immediately preceding sentence, the “Payment Fund”). The Payment Fund shall not be used for any purpose other than to pay the Offer Price in the Offer and the Merger Consideration to holders of Shares in the MergerParent.
(b) Except as provided in this Section 3.04(b), at Merger Subsidiary shall instruct the Effective Time, holders of Shares shall not be required to take any action with respect to the exchange of their Shares for the Merger Consideration.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Disbursing Agent to pay and deliver as mail promptly as possible after the Effective Time, but in no event later than the Merger Consideration fifth Business Day thereafter, to each person who was a record holder as of the Effective Time of an outstanding certificate or certificates which such holder shall become entitled pursuant Section 3.03(aimmediately prior to the Effective Time represented Shares (the "Certificates"), and whose Shares were converted into the Shares so exchanged right to receive Merger Consideration pursuant to Section 3.06(b), a form of letter of transmittal (which shall specify that delivery shall be forthwith canceled. Payment effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the applicable Merger Consideration with respect to such Shares shall be made only Certificates to the Person Disbursing Agent) and instructions for use in whose name effecting the surrender of the Certificates in exchange for payment of the Merger Consideration. Upon surrender of a Certificate to the Disbursing Agent for cancellation, together with such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees letter of transmittal duly executed and such other necessary third-party intermediaries to ensure that documents as may be reasonably required by the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by ParentDisbursing Agent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners holder of such Shares held, directly or indirectly through DTC, Certificate shall become be entitled pursuant to Section 3.03(a).
(iii) No interest shall accrue or be paid on receive in exchange therefor the Merger Consideration payable to holders in respect of Shares in accordance with this Section 3.04(b) for that Certificate, less any required withholding of Taxes, and such Certificate shall forthwith be cancelled. No interest will be paid or accrued on the benefit cash payable upon the surrender of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a)Certificates.
(ivc) If the payment of any Merger Consideration is to be made to a Person person other than the Person person in whose name the Certificate surrendered Shares is registered on the stock transfer books of the Companyregistered, it shall be a condition of payment that the Person Certificate so surrendered be properly endorsed or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all pay any transfer and or other similar Taxes taxes required by reason of the payment of the Merger Consideration to a Person person other than the registered holder of the Shares surrendered, Certificate surrendered or shall have established establish to the satisfaction of the Surviving Corporation that such Taxes either have tax has been paid or are is not applicable. None .
(d) Until surrendered in accordance with the provisions of this Section 3.07, each Certificate (other than Certificates representing Shares owned by Parent, Merger Subsidiary or any other subsidiary of Parent, Purchaser or Shares held by the Surviving Corporation Company and Dissenting Shares) shall have any liability represent for all purposes, from and after the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstanceEffective Time, only the right to receive the applicable Merger Consideration.
(ce) All At and after the Effective Time, there shall be no registration of transfers of Shares which were outstanding immediately prior to the Effective Time on the stock transfer books of the Surviving Corporation. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided in this Agreement or by applicable Law. The Merger Consideration paid upon the transfer surrender of Shares Certificates in accordance with the terms hereof of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly previously represented by such SharesCertificates. After If, after the Effective Time, there Certificates are presented to the Surviving Corporation for any reason, such Certificates shall represent the right to receive the Merger Consideration as provided in this Article III. At the close of business on the day of the Effective Time the stock ledger of the Company shall be no further registration of transfers of Sharesclosed.
(df) Any portion of the Merger Consideration made available to the Paying Disbursing Agent pursuant to Section 3.04(a) (and pay for Shares for which appraisal rights have been perfected shall be returned to Parent upon demand. At any interest or other income earned thereon) that remains unclaimed by the holders of Shares time more than twelve months after the Effective Time Time, the Disbursing Agent shall be returned upon demand of Parent deliver to Parentit any funds which had been made available to the Disbursing Agent and not disbursed in exchange for Certificates (including all interest and other income received by the Disbursing Agent in respect of all such funds). Thereafter, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time holders of Certificates shall thereafter look only to Parent for payment the Surviving Corporation (subject to the terms of this Agreement, abandoned property, escheat and other similar Laws) as general creditors thereof with respect to any Merger Consideration that may be payable, without interest, upon due surrender of the Merger Consideration in respect Certificates held by them. Any amounts remaining unclaimed immediately prior to such time when such amounts would otherwise escheat or become the property of such Shares without any governmental unit or agency, shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation, free and clear of all claims or interest thereonof any person previously entitled thereto. Notwithstanding the foregoing, Parent none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Disbursing Agent shall not be liable to any holder of Shares a Certificate for any amount paid Merger Consideration delivered in respect of such Certificate of Shares to a public official pursuant to applicable any abandoned property, escheat or other similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled thereto.
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Sources: Merger Agreement (Wiser Oil Co)
Surrender and Payment. (a1) Prior to WesBanco Bank Kingwood, Inc. shall serve as the Acceptance Date, Parent shall appoint a bank or trust company to act as paying agent (the “Depository Agent”) for purposes of paying the aggregate Offer Price to the holders of Shares that become entitled to receive the aggregate Offer Price pursuant to Section 2.01(d) and as agent (the “Paying Agent”"PAYING AGENT") for the purpose of exchanging paying the Purchase Price to the Shareholders of the Company in exchange for certificates representing shares of Stock. The Paying Agent shall be responsible for sending a notice and transmittal form to the Shareholders of the Company advising such Shareholders of the effectiveness of the Merger Consideration and the Shares pursuant procedure for surrendering to Section 3.03(a). Promptly after (and in any event no later than the first Business Day after) the Acceptance Date, Parent shall deposit, or shall cause to be deposited, with the Depository Paying Agent cash sufficient to make the such shares for payment of the aggregate Offer Purchase Price. The Paying Agent shall hold the funds representing the Purchase Price payable in trust and deliver such funds in accordance with this SECTION 1.11. The Purchaser shall have no responsibility as to any payments to the Shareholders of the Company; its sole responsibility being to make payment as set forth in this Section.
(2) Each holder of a certificate or certificates representing shares of Stock which are converted pursuant to Section 2.01(d). As SECTION 1.9 into the right to receive a pro rata portion of the Effective TimePurchase Price, Parent shall deposit, or shall cause upon surrender to be deposited, with the Paying Agent cash sufficient to pay the aggregate Merger Consideration payable pursuant to Section 3.03(a) (of such certificates for cancellation, together with any duly completed and recorded documentation, will be entitled promptly to receive a check representing cash in the amount deposited pursuant to of the immediately preceding sentencePurchase Price, less the “Payment Fund”). The Payment Fund shall not be used for any purpose Escrow Deposit, times a fraction (x) the numerator of which is the number of shares of Stock represented by such certificates and (y) the denominator which is the total number of shares of Stock issued and outstanding (other than shares of Stock referred to pay the Offer Price in the Offer and the Merger Consideration SECTION 1.9(A)), less any amount required to holders of Shares in the Mergerbe withheld under applicable federal income tax regulations.
(b3) Except In the event any certificate representing shares of Stock to be exchanged for the Purchase Price has been lost, stolen or destroyed, the Paying Agent shall pay to the person claiming that such certificate has been lost, stolen or destroyed, the cash into which the shares theretofore represented by such certificate has been converted, as provided in this Section 3.04(bSECTION 1.11(B), at the Effective Timeupon receipt of evidence of ownership of such certificate and appropriate indemnification, holders of Shares shall not be required to take any action with respect in each case satisfactory to the exchange of their Shares for the Merger ConsiderationPaying Agent.
(i) Any holder of Shares held in direct registry form through the Company’s transfer agent, Equiniti Trust Company, LLC (formerly known as American Stock Transfer & Trust Company, LLC) (the “Company Transfer Agent”) shall, subject to compliance with customary procedures of the Paying Agent and the Company Transfer Agent, automatically upon the Effective Time, be entitled to receive, and Parent shall cause the Paying Agent to pay and deliver as promptly as possible after the Effective Time, the Merger Consideration to which such holder shall become entitled pursuant Section 3.03(a), and the Shares so exchanged shall be forthwith canceled. Payment of the applicable Merger Consideration with respect to such Shares shall be made only to the Person in whose name such Shares are registered.
(ii) With respect to Shares held, directly or indirectly, through the Depository Trust Company (“DTC”), Parent and the Company shall cooperate to establish procedures with the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries to ensure that the Paying Agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Parent, the Company, the Paying Agent, DTC, DTC’s nominees and such other necessary third-party intermediaries, the Merger Consideration to which the beneficial owners of such Shares held, directly or indirectly through DTC, shall become entitled pursuant to Section 3.03(a).
(iii4) No interest shall accrue or be paid on the Merger Consideration payable to holders of Shares in accordance with this Section 3.04(b) for the benefit of the holder thereof. Until exchanged as contemplated by this Section 3.04(b) or as otherwise contemplated in Section 3.05, each Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration as contemplated by Section 3.03(a).
(iv) If the payment of any Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the Person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Shares surrendered, or shall have established to the satisfaction of the Surviving Corporation that such Taxes either have been paid or are not applicable. None of Parent, Purchaser or the Surviving Corporation shall have any liability for the transfer and other similar Taxes described in this Section 3.04(b)(iv) under any circumstance.
(c) All Merger Consideration paid upon the transfer of Shares in accordance with the terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the Shares formerly represented by such Shares. After the Effective Time, there shall be no further registration of transfers of Shares.
(d) Any portion of the Merger Consideration made available to the Paying Agent pursuant to Section 3.04(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Shares twelve months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Shares for the Merger Consideration in accordance with this Section 3.04 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Parent shall not be liable to any holder of Shares for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of Shares 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 Parent free and clear of any claims or interest of any Person previously entitled theretoPurchase Price.
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