Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action. (b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”). (c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10. (d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount. (e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable. (f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 4 contracts
Sources: Merger Agreement (AIRO Group Holdings, Inc.), Merger Agreement (AIRO Group Holdings, Inc.), Merger Agreement (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder member of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock Interests a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit A parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Interests (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares Interests formerly represented by such Certificate as provided in this Agreement and the Promissory NotesAgreement, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.Members
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder Member who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders Members 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock Shares a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit A parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory NotesAgreement, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder member of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder member of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock Membership Interest a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit A parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Membership Interest (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares Interests formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders Members on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder Member who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders Members 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares Interests outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares Interests (each, a “Certificate”) shall cease to have any rights as a stockholder member of the Target Company; or (ii) in the case of uncertificated sharesInterests, such holder shall cease to have any rights as a stockholder member of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock Membership Interest a letter of transmittal in form and substance reasonably satisfactory to the form attached hereto as Exhibit A parties (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.8(a). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b2.8(a) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Membership Interest (other than Dissenting SharesInterests) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.8(a). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder Member shall also be entitled to any amounts that may be payable in the future in respect of the Shares Interests formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders Members on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders Members ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder Member who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders Members 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares Interests shall be returned to Holdings, upon demand.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.), Agreement and Plan of Merger (AIRO Group Holdings, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior to Parent shall appoint an agent previously approved by the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”)) and enter into an agreement (in a form reasonably acceptable to the Company) with the Exchange Agent for the purpose of exchanging for the Merger Consideration certificates representing Shares (the “Certificates”) and making the payments described in Section 2.05. Sub or one of its Affiliates shall deposit with the Exchange Agent, at or prior to the Effective Time, the Merger Consideration to be paid in respect of the Certificates and the cash necessary to make the payments described in Section 2.05. These amounts shall not be used for any other purpose, and Parent and Sub shall remain liable for any shortfall in such amounts and for the ultimate payment of the Merger Consideration and the amounts described in Section 2.05.
(cb) As promptly soon as reasonably practicable following after the date hereof Effective Time and in any event not later than five two (52) Business Days thereafterfollowing the Closing Date, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock record of Shares whose Shares were converted into Merger Consideration pursuant to Section 2.02(a) (A) a letter of transmittal (which shall specify that, in the case of certificated Shares, delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of Certificates to the Exchange Agent and shall be in such form attached hereto and have such other provisions as Exhibit A Parent and the Exchange Agent may agree and which are reasonably satisfactory to the Company), and (a “Letter of Transmittal”B) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b)Consideration. Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the Each holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate Shares that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence have been converted into the right to receive the portion Merger Consideration shall be entitled to receive, upon surrender to the Exchange Agent of a Certificate or book-entry share, together with a properly completed letter of transmittal, the Merger Consideration payable for each Share formerly represented by a Certificate or book-entry share. Until so surrendered or transferred, as provided in Section 2.8(b). If the case may be, each such Certificate or book-entry share shall represent after the Effective Time, any Certificate is presented Time for all purposes only the right to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10receive the Merger Consideration.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or book-entry share is registered, it shall be a condition to such delivery payment that (i) either such Certificate or book-entry share shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or book-entry share or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Certificates or book-entry share 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.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the Target Company Stockholders ninety (90) days holders of Shares twelve months after the Effective Time shall be returned to Holdings, the Surviving Corporation or one of its Affiliates upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates such Shares for the Merger Consideration in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent or the Surviving Corporation for delivery payment of the Merger ConsiderationConsideration in respect of such Shares without any interest thereon. Notwithstanding the foregoing, Holdings none of the Exchange Agent, Parent, the Surviving Corporation or any of its Affiliates shall not be liable to any holder of Certificates Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaws.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 3 contracts
Sources: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
Surrender and Payment. (a) At or promptly after (but in no event later than 2 Business Days following) the Effective Time, all Shares outstanding the Parent shall deposit, or shall cause to be deposited, with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, of the Company) (the “Paying Agent”), for the benefit of the holders of (i) certificates that immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either evidenced shares of Company Class A Common Stock (i) each holder of a certificate formerly representing any Shares (each, a the “CertificateCertificates”) shall cease to have any rights as a stockholder of the Target Company; or and (ii) in the case uncertificated shares of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger Class A Common Stock (the “Exchange AgentUncertificated Shares”).
(c) , for exchange in accordance with this Article III, cash in an amount equal to the aggregate amounts payable under Section 3.1(a)(i); provided that such amount shall be increased by any amount that shall become payable by the Paying Agent to the holders of Company Equity Awards pursuant to Parent’s election under the first sentence of Section 3.3(d). As promptly soon as reasonably practicable following after the date hereof Effective Time and in any event not later than five the fifth (55th) Business Days thereafterDay following the Effective Time, Holdings Paying Agent shall mail to each holder of Target shares of Company Class A Common Stock at the Effective Time a letter of transmittal in the form attached hereto as Exhibit 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 Paying Agent) for use in effecting the such exchange. Upon proper surrender of Certificates in a Certificate for exchange for and cancellation or transfer of Uncertificated Shares to the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificatePaying Agent, together with a Letter letter of Transmittal transmittal, duly completed and validly executed in accordance with the instructions thereto, and any such other customary documents that Holdings as may reasonably require in connection therewithbe required pursuant to such instructions, deliver to the holder of such Certificate such holder’s portion of or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration as provided in Section 2.8(b) with respect to of the shares of Company Class A Common Stock formerly represented by any such Certificate and such Certificate so surrendered and the Certificate shares of Company Class A Common Stock formerly represented by any such Uncertificated Shares shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented .
(b) Each holder of shares of Target Company Class A Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence that have been converted into the right to receive the portion 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 as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly Company Class A Common Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate as provided in this Agreement and or Uncertificated Share shall represent after the Promissory Notes, at Effective Time for all purposes only the respective time and subject right to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amountreceive such Merger Consideration.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of Holdings the Paying Agent that such Tax has Taxes have been paid or is are not payable.
(fd) At and after the Effective Time, there shall be no further transfers on the stock transfer books of Company Capital Stock. If, after the Effective Time, Certificates or Uncertificated 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.
(e) Any portion of the Merger Consideration made available to the Paying Agent pursuant to (a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Class A Common Stock nine (909) days months after the Effective Time shall be returned paid, at the request of Parent, to Holdings, upon demandor as directed by Parent, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Class A Common Stock for the Merger Consideration in accordance with this Section 2.10 3.4 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration, without any interest thereon. Notwithstanding anything to the foregoingcontrary contained herein, Holdings none of the Acquirer Parties, the Company, the Paying Agent or any other Person shall not be liable to any holder or former holder of Certificates shares of Company Class A Common Stock for any amounts paid amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled cancelled, retired and retired extinguished, as applicable, and shall cease to exist, and, subject to Section 2.91.8, either (i) each holder of a certificate or other instrument formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of Stockholder, other than to receive the Target Company; or (ii) in consideration for the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionShares hereunder.
(b) HoldingsAs promptly as practicable following the date hereof, or the Parties shall designate TMI Trust Company, a transfer agent appointed by HoldingsTexas trust company, shall to act as the exchange agent in the Merger (the “Exchange Agent”)) pursuant to a commercially reasonable exchange agent agreement entered into by Parent, Operator and the Exchange Agent. At or before the Effective Time, Parent and Operator shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the Stockholders, for exchange in accordance with this Section 1.9, through the Exchange Agent, cash in U.S. dollars in the respective amounts set forth in Section 1.14 and sufficient to pay the Merger Consideration as provided herein (such cash, and all interest and earnings thereon, being hereinafter referred to as the “Exchange Fund”) payable pursuant to Section 1.6 in exchange for outstanding Shares. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration contemplated to be paid pursuant to Section 1.6 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
(c) As promptly as practicable following the date hereof and in any event not The Exchange Agent shall, no later than five (5) Business Days thereafterafter the Closing, Holdings shall mail subject to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificateall Certificates, together with a Letter Letters of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of respective Stockholders the Merger Consideration cash amounts as provided in Section 2.8(b) 1.6 with respect to each such Certificate so Stockholders’ surrendered Certificate, and the each such Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. In the event of a transfer of ownership of Shares that are not registered in the transfer records of HoldCo, the Merger Consideration may be issued to a transferee only if the Certificate representing such Shares is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer including, if able to be provided, a FIRPTA Statement and by evidence that any applicable stock transfer Taxes have been paid. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b)1.6. If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.101.9.
(d) Each Target Company Common Stockholder and Series B Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate Certificates from the Escrow Accounts as provided in this Agreement and the Promissory NotesEscrow Agreement, and on account of the applicable Post-Closing Adjustment, if any, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed endorsed, or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Certificate Certificates or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration or other amounts that remains remain unclaimed by the Target Company Stockholders ninety (90) days one year after the Effective Time shall be returned to HoldingsBuyer Parties in their respective Pro Rata Portions, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration or other amounts in accordance with this Section 2.10 1.9 prior to that time shall thereafter look only to Holdings Buyer Parties in their respective Pro Rata Portions for delivery payment of the Merger ConsiderationConsideration or such other amounts; provided, that any such portion of the Merger Consideration payable from the Escrow Accounts shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of any Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Buyer Parties shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Holdings Buyer Parties in their respective Pro Rata Portions free and clear of any claims Claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer Parties in their respective Pro Rata Portions, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Surrender and Payment. (a) At Immediately prior to the Effective Time, Parent shall deliver to a disbursing agent selected by Target after consultation with Parent, all Shares outstanding the costs of which will be paid by Parent (the “Agent”), the sum of One Hundred Two Million and No/100 Dollars ($102,000,000.00) less the amount of the Performance Deposit (as such term is defined in Section 3.06 of this Agreement) for purposes of paying in full the long-term indebtedness of Target and its Subsidiaries and the consideration shareholders of Target are entitled to receive as a result of the Merger.
(b) Except as provided in Section 3.01(d) above, at the Effective Time, each holder of a certificate which immediately prior to the Effective Time of the Merger represented issued and outstanding shares of Target Common Shares, shall automatically be cancelled and retired and entitled, upon surrender thereof to Agent, to receive payment therefor in cash in the amount set forth in Section 3.01(c). Promptly, but in no event more than ten (10) days after the Effective Time, Parent shall cease cause to existbe mailed to each person who was, andimmediately prior to the Effective Time, subject to Section 2.9, either (i) each a holder of a certificate formerly representing any Shares (eachrecord of issued and outstanding Target Common Shares, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion certificates therefor and Target shall ensure that a list of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later holders of (i) the Closing Date or (ii) five (5) Business Days after receipt Target Common Shares as of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and delivered to Parent immediately after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(ec) If any portion of the Merger Consideration payment for Target Common Shares is to be delivered to made in a Person name other than that in which the Person in whose name the Certificate (as defined below) therefor is surrendered Certificate is for exchange as registered, it shall be a condition to of such delivery payment that (i) such the Certificate shall so surrendered be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person person requesting such payment or delivery shall either pay to Holdings the Agent any transfer or other Tax taxes required as a result by reason of such the payment to a Person person other than the registered holder of such the Certificate surrendered or establish to the reasonable satisfaction of Holdings the Agent that such Tax tax has been paid or is not payable.
(fd) After the Effective Time there shall be no transfers on the stock transfer books of Target of Target Common Shares that were issued and outstanding immediately prior to the Effective Time, other than transfers of Target Common Shares by dissenting shareholders pursuant to the applicable provisions of the NRS.
(e) Any portion cash in the hands of the Merger Consideration that Agent delivered pursuant to Section 3.02(a) above which remains unclaimed by the Target Company Stockholders ninety following twelve (9012) days months after the Effective Time shall be returned to Holdings, upon demandParent, and thereafter the holders of Target Common Shares shall look solely to Parent and not to the Agent as to any rights afforded to such Target Company Stockholder who has not exchanged Certificates for holders pursuant to this Agreement, subject to applicable state laws.
(f) Agent, on behalf of each of Parent and the Merger Consideration in accordance with Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable Agreement to any holder of Certificates Target Common Shares such amounts as may be required to be deducted and withheld with respect to the payment of taxes under the Internal Revenue Code of 1986, as amended (the “Code”), or any provisions of state, local or foreign tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for any amounts all purposes of this Agreement as having been paid to a public official the holders of Target Common Shares in respect to the consideration due to such holders pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretothis Agreement.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of If any Dissenting certificate representing Target Common Shares (a “Certificate”) shall be returned to Holdingshave been lost, stolen or destroyed, upon demandthe making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, unless otherwise waived by the Parent, 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 the Surviving Corporation with respect to such Certificate, Parent will issue in exchange for such lost, stolen or destroyed Certificate the amounts to be paid hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Platinum Energy Resources Inc), Merger Agreement (Platinum Energy Resources Inc)
Surrender and Payment. (a) At Closing, in addition to making the Effective Timepayments set forth in Section 7.09, all Buyer or MergerCo shall deposit, or shall cause to be deposited (x) with the Company, in a separate account established for the benefit of the holders of Shares outstanding and Company Warrants (the “Payment Fund”), by wire transfer of immediately prior available funds, an amount equal to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject estimate of the aggregate Share Consideration furnished pursuant to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder 2.11 and the estimate of the Target Company; or aggregate Warrant Consideration furnished pursuant to Section 2.11, less the Escrow Amount, and (iiy) with the Escrow Agent, in a separate account established pursuant to the Escrow Agreement for the benefit of the holders of Shares and Company Warrants (the “Escrow Fund”), by wire transfer of immediately available funds, the Escrow Amount. Neither the Payment Fund nor the Escrow Fund shall be used for any purpose except as expressly provided in this Agreement and in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionEscrow Agreement.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Each holder of Shares that have been converted into the exchange agent in right to receive the Merger applicable Share Consideration will be entitled to receive upon surrender to the Surviving Corporation of certificates representing Shares (the “Exchange AgentShare Certificates”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter properly completed letter of Transmittal duly completed transmittal, the Share Consideration for each Share represented by such Share Certificate, in the manner and validly executed at the times set forth in accordance with the instructions thereto, Sections 2.05(c) and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled2.13. Until so surrendered, each outstanding such Share Certificate that shall represent after the Effective Time for all purposes only the right to receive such Share Consideration.
(c) Payment of the applicable Share Consideration shall be effected in the following manner:
(i) If any holder of record of any Shares surrenders such holder’s Share Certificate(s), together with a properly completed letter of transmittal, to the Surviving Corporation at the Effective Time, or thereafter but prior to the determination of Final Working Capital, then such holder shall receive (A) payment of the applicable Initial Payment for such Shares, if surrendered at the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and Time, at the Closing, or, if surrendered after the Effective Time, on the second business day after such surrender, and (B) the applicable Final Payment for all purposessuch Shares in accordance with Section 2.13, in each case in immediately available funds by wire transfer to an account designated by such holder in the letter of transmittal.
(ii) If any holder of record of any Shares surrenders such holder’s Share Certificate(s), together with a properly completed letter of transmittal, to evidence the right Surviving Corporation after the determination of Final Working Capital, then such holder shall be entitled to receive the portion payment of the Merger Share Consideration as provided for each such Share on the second business day after such surrender in Section 2.8(b)immediately available funds by wire transfer to an account designated by such holder in the letter of transmittal. If after No later than two business days prior to the Effective Timedate on which the Closing is scheduled to occur, any Certificate is presented the Company shall send to Holdings, it each holder of Shares a letter of transmittal for use in exchanging such Shares for the applicable Share Consideration. The letter of transmittal shall be cancelled in form and exchanged as provided in this Section 2.10substance reasonably acceptable to Buyer.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger applicable Share Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Share Certificate is registered, it shall be a condition to such delivery payment that (i) such the Share Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Surviving Corporation any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Share Certificate or establish to the reasonable satisfaction of Holdings the Surviving Corporation that such Tax tax has been paid or is not payable.
(e) After the Effective Time, there shall be no further registration of transfers of Shares. If, after the Effective Time, Share Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the applicable Share Consideration. For purposes of such exchange, the canceled Shares shall be deemed surrendered pursuant to Section 2.05(c) as of the date presented to the Surviving Corporation.
(f) Any portion of amount in the Merger Consideration Payment Fund and the Escrow Fund (and any interest or other income earned thereon) that remains unclaimed by the Target Stockholders and the holders of the Company Stockholders ninety Warrants after the later of (90i) days after the determination of the Final Working Capital and Final Closing Cash and (ii) a period of 12 months immediately following the Effective Time shall be returned to Holdings, upon demandthe Surviving Corporation, and any such Target Company Stockholder holder who has not exchanged Certificates its Shares for the Merger applicable Share Consideration in accordance with this Section 2.10 and any holder who has not exercised its Company Warrants for the applicable Warrant Consideration prior to that such time shall thereafter look only to Holdings the Surviving Corporation for delivery payment thereof without any interest thereon. Any portion of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to aggregate Share Consideration (and any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat interest or similar Laws. Any amounts remaining other income earned thereon) that remains unclaimed by Target Company the Stockholders two years after on the second anniversary of the date on which the Effective Time occurs (or such earlier date, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable Lawlaw, the property of Holdings the Surviving Corporation, free and clear of any claims or interest of any Person previously entitled thereto. Any portion of the aggregate Warrant Consideration that remains unclaimed by the holders of Company Warrants at 5:00 p.m., New York City time, on April 15, 2014 shall become, to the extent permitted by applicable law and the provisions of the Warrant Agreement, the property of 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (Mueller Water Products, Inc.), Merger Agreement (Walter Industries Inc /New/)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding Parent shall appoint an agent reasonably acceptable to the Company (the “Paying Agent”) and enter into a paying agent agreement with the Paying Agent reasonably acceptable to the Company for the purpose of acting as agent in exchanging for the applicable portion of the Merger Consideration (A) certificates representing shares of Company Stock (the “Certificates”) or (B) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time (but in no event later than two (2) Business Days after the Effective Time), the Company shall send, or shall cause the Paying Agent to send, to each holder of record of shares of Company Stock (other than shares of Company Stock to be canceled pursuant to Section 2.02(a)(i) or Section 2.02(a)(ii) and shares of Company Stock converted pursuant to Section 2.02(a)(iii)) as of immediately following the Exchange and Redemption and immediately prior to the Effective Time a letter of transmittal (in a form that was reasonably acceptable to the Company prior to the Effective Time) and instructions (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, andonly upon proper delivery of the Certificates or receipt of an “agent’s message”, subject to Section 2.9as applicable) for use in the exchange of such shares of Company Stock for such holder’s applicable portion of the Merger Consideration; provided, either (i) each that if any holder of a certificate formerly representing any Shares record of shares of Company Stock or OpCo Units requests in writing to the Company (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than at least five (5) Business Days thereafter, Holdings shall mail prior to each holder of Target Company Common Stock a the Closing) to receive such letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting advance of the surrender Effective Time, the Company shall send, or shall cause the Paying Agent to send, to each such requesting holder such letter of Certificates transmittal and instructions in exchange for advance of the applicable portion Effective Time.
(b) Each holder of Merger shares of Company Stock that have been converted into the right to receive the Per Share Consideration pursuant shall be entitled to Section 2.8(b). Holdings shallreceive, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Paying Agent of a Certificate, together with a Letter of Transmittal duly properly completed and validly duly executed letter of transmittal in accordance the case of certificated shares of Company Stock, 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 Per Share Consideration in respect of each share of Company Stock represented by such Certificate or Uncertificated Share. Notwithstanding anything to the contrary herein, to the extent a properly completed and duly executed letter of transmittal completed by a holder of Company Stock as of immediately following the Exchange and Redemption and immediately prior to the Effective Time that has been converted into the right to receive the Per Share Consideration is received by the Paying Agent (together with the instructions theretosurrender of a Certificate, and any other customary documents that Holdings may reasonably require in connection therewith, deliver if applicable) at least one (1) Business Day prior to the holder Effective Time, Parent shall cause to be paid out of such Certificate such holder’s the Payment Fund (as defined below) the applicable portion of the Merger Consideration to which such holder of Company Stock is entitled as provided in Section 2.8(b) with respect to such Certificate so surrendered and promptly as reasonably practicable following the Certificate shall forthwith be cancelledoccurrence of the Effective Time. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such applicable portion of the Merger Consideration. At or prior to the Effective Time represented shares Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, for the benefit of Target the holders of Company Common Stock entitled thereto, cash in an amount sufficient to pay the aggregate Merger Consideration (other than Dissenting excluding any amounts in respect of any Appraisal Shares) shall (such cash being hereinafter referred to as the “Payment Fund”). The Payment Fund shall, pending its disbursement to the holders of Company Stock entitled thereto, be deemed from and invested by the Paying Agent as directed by Parent or, after the Effective Time, for all purposes, to evidence the right to receive the portion Surviving Corporation in (i) short-term direct obligations of the Merger Consideration as provided in Section 2.8(b). If after United States of America, (ii) short-term obligations for which the Effective Time, any Certificate is presented to Holdings, it shall be cancelled full faith and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect credit of the Shares formerly represented United States of America is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either ▇▇▇▇▇’▇ Investors Service, Inc. or Standard and Poor’s Ratings Services, or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks reasonably acceptable to the Company; provided that no such Certificate investment or losses shall affect the amounts payable to such holders of Company Stock entitled thereto and Parent shall promptly replace or cause to be replaced any funds deposited with the Paying Agent that are lost through any investment so as provided in this Agreement and to ensure that the Promissory NotesPayment Fund is at all times maintained at a level sufficient for the Paying Agent to pay the aggregate unpaid Merger Consideration. Earnings from investments, at the respective time and subject to the contingencies specified herein immediately preceding proviso, shall be paid to and therein. Unless otherwise provided herein or in shall be the Promissory Notes, sole and exclusive property of Parent and the Surviving Corporation and no interest shall will be paid or accrued for the benefit of Target any holders of Company Stockholders on Stock entitled to a portion of the Promissory Note Principal AmountMerger Consideration. Except as contemplated by Section 2.03(e) hereof, the Payment Fund shall not be used for any other purpose.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the a surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Paying Agent any transfer or other Tax Taxes or fees required as a result of such payment to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Holdings the Paying Agent that such Tax has been paid or is not payable. Payment of the applicable portion of the Merger Consideration in respect of Uncertificated Shares will only be made to the Person in whose name such Uncertificated Shares are registered as of immediately following the Exchange and Redemption and immediately prior to the Effective Time.
(fd) From and after the Effective Time, there shall be no further registration of transfers of shares of Company Stock that were outstanding immediately prior to the Effective Time. 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 portion of the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration Payment Fund that remains unclaimed by undistributed to the Target former holders of shares of Company Stockholders ninety Stock entitled thereto one (901) days year after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target former holder of shares of Company Stockholder Stock who has not exchanged Certificates shares of Company Stock for the Merger Per Share Consideration to which they are entitled in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent and the Surviving Corporation for delivery payment of the applicable portion of the Merger Consideration, in respect of such shares of Company Stock without any interest thereon. Notwithstanding the foregoing, Holdings Parent and the Surviving Corporation shall not be liable to any holder of Certificates shares of Company Stock for any amounts properly paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders two years after the Effective Time (or such earlier date, Stock immediately prior to such time when the such amounts would otherwise escheat to or become property of any Governmental Entity) Authority shall become, to the extent permitted by applicable Applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.8, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) HoldingsPrior to the Effective Time, or a transfer Buyer and the SPAC shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) 15 Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock Shareholder that holds Shares a letter of transmittal in substantially the form attached hereto as Exhibit A E (a “Letter of Transmittal”) and ), and, if such Shares are represented by a stock certificate (each, a “Certificate”), instructions for use in effecting the surrender of Certificates (or affidavits of loss in lieu thereof in accordance with Section 2.13), in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.6(b). Holdings The Exchange Agent shall, no later than the later of of: (i) the Closing Date Date; or (ii) five (5) 15 Business Days after receipt of a Certificate, together with a Letter of Transmittal with respect to Shares duly completed and validly executed in accordance with the instructions theretothereto (and, and if applicable, a Certificate (or affidavits of loss in lieu thereof in accordance with Section 2.13) representing such Shares), together with any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewiththerewith (collectively, deliver the “Surrender Documentation”), issue to the holder of such Certificate Shares such holder’s portion of share as indicated in the Merger Consideration Spreadsheet of the Closing Merger Consideration (minus such holder’s share as provided indicated in Section 2.8(bsuch spreadsheet of the Holdback Shares) with respect to such Certificate so surrendered and Shares, and, if applicable, the Certificate representing such Shares shall forthwith be cancelled. The issuance of the Buyer Exchangeable Shares including the Holdback Shares may be in electronic book entry or DRS form without the issuance of physical stock certificates. With respect to each Company Shareholder, until such time as such Company Shareholder’s Buyer Exchangeable Shares shall be deliverable to such Company Shareholder pursuant to this Section 2.9(c), such Buyer Exchangeable Shares will be held in escrow by the Exchange Agent and treated as having been issued at the Closing to such Company Shareholder and outstanding, and such Company Shareholder (i) will be shown as the registered owner thereof on the books and records of Buyer and (ii) shall have all rights to receive on a current basis any dividends or other distributions made with respect to such Buyer Exchangeable Shares which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of such Company Shareholder, and included as part of such Buyer Exchangeable Shares, but in all cases subject to adjustment in accordance with Section 2.18. In the event that the Letter of Transmittal of a Company Shareholder indicates that such Company Shareholder is a Non-Accredited Seller, (A) the Exchange Agent shall promptly notify Buyer and the SPAC of such status, (B) Buyer and the SPAC, to the extent that neither has reasonable knowledge that such Company Shareholder is an accredited investor, shall promptly deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller, the amount in cash payable to such Non-Accredited Seller in respect of the Closing Merger Consideration pursuant to Section 2.9(i), (C) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares and (D) the Buyer Exchangeable Shares previously made available to the Exchange Agent in respect of Merger Consideration deliverable to such Non-Accredited Seller shall be returned by the Exchange Agent to Buyer.
(d) The Exchange Agent shall, with respect to each holder of Shares, no later than the later of: (i) if such holder has previously delivered completed and validly executed Surrender Documentation, five (5) Business Days following the determination of the final number of Buyer Exchangeable Shares to be issued following the determination of the adjustment under Section 2.6(d); or (ii) if such holder has not yet delivered completed and validly executed Surrender Documentation, 15 Business Days after receipt of such completed and validly executed Surrender Documentation, issue to such holder its share as indicated in the Merger Consideration Spreadsheet of the Holdback Shares (and any Additional Shares, if applicable) with respect to such Shares. Until such time as the Holdback Shares shall be released to the Company Shareholders or permanently withheld pursuant to Section 2.18, the Holdback Shares will be held in escrow by the Exchange Agent and treated as having been issued at the Closing to the respective Company Shareholders and outstanding, and the respective Company Shareholders (i) will be shown as the registered owners thereof on the books and records of Buyer and (ii) shall have all rights to vote such Holdback Shares and receive on a current basis any dividends or other distributions made with respect to the Holdback Shares, which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of the Company Shareholders, and included as part of the Holdback Shares. Notwithstanding the foregoing, with respect to each Non-Accredited Seller, (A) Buyer and the SPAC shall deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller in accordance with this Section 2.9(d), the amount in cash payable to such Non-Accredited Seller in respect of the Holdback Shares (and any Additional Shares, if applicable) pursuant to Section 2.9(i), (B) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares and (C) the Holdback Shares previously made available to the Exchange Agent in respect of such Non-Accredited Seller shall be returned by the Exchange Agent to Buyer.
(e) The Exchange Agent shall, with respect to each holder of Shares, no later than the later of: (i) if such holder has previously delivered completed and validly executed Surrender Documentation, the date upon which Buyer Exchangeable Shares become issuable to Company Shareholders as Earnout Consideration pursuant to Article 2 of the Investor Rights Agreement and the Exchange Agent receives such Buyer Exchangeable Shares in respect of such Earnout Consideration; or (ii) if such holder has not yet delivered completed and validly executed Surrender Documentation, 15 Business Days after receipt of such completed and validly executed Surrender Documentation, issue to such holder its share as indicated in the Merger Consideration Spreadsheet of such Earnout Consideration with respect to such Shares. With respect to each Company Shareholder, from and after the Exchange Agent’s receipt of Buyer Exchangeable Shares in respect of Earnout Consideration until such time as such Company Shareholder’s Buyer Exchangeable Shares shall be deliverable to such Company Shareholder pursuant to this Section 2.9(e), such Buyer Exchangeable Shares will be held in escrow by the Exchange Agent and treated as having been issued upon such Earnout Consideration becoming issuable to such Company Shareholder pursuant to the Investor Rights Agreement, and such Company Shareholder (i) will be shown as the registered owner thereof on the books and records of Buyer and (ii) shall have all rights to receive on a current basis any dividends or other distributions made with respect to such Buyer Exchangeable Shares which dividends and distributions shall be issued to Exchange Agent, held by Exchange Agent for the benefit of such Company Shareholder, and included as part of such Buyer Exchangeable Shares. The Exchange Agent shall, no later than the date upon which Buyer Exchangeable Shares become issuable to Vested Optionholders as Earnout Consideration pursuant to Article 2 of the Investor Rights Agreement and the Exchange Agent receives such Buyer Exchangeable Shares in respect of such Earnout Consideration, issue to each Vested Optionholder its share as indicated in the Merger Consideration Spreadsheet of such Earnout Consideration with respect to the Vested Exchanged Options held by such Vested Optionholder. Notwithstanding the foregoing, with respect to each Non-Accredited Seller, (A) Buyer and the SPAC shall deliver or cause to be delivered to the Exchange Agent, for further distribution to such Non-Accredited Seller in accordance with this Section 2.9(e), the amount in cash payable to such Non-Accredited Seller in respect of Earnout Consideration pursuant to Section 2.9(i) and (B) the Exchange Agent shall distribute such cash to such Non-Accredited Seller in lieu of Buyer Exchangeable Shares.
(f) Until so surrendered, each outstanding Share (and any Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares) (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(bSections 2.6(b) and (d). If after the Effective Time, any Share (or any Certificate that prior to the Effective Time represented a Share) is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.10Section.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders six months after the Effective Time date upon which such portion of the Merger Consideration became deliverable to the Company Shareholders shall be returned to HoldingsBuyer or the SPAC, as applicable, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates the Surrender Documentation for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings Buyer or the SPAC, as applicable, for delivery issuance of such portion of the Merger Consideration. Notwithstanding the foregoing, Holdings neither Buyer nor the SPAC shall not be liable to any holder of Certificates Shares for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts portion of the Merger Consideration remaining unclaimed by Target Company Stockholders Shareholders two years after the Effective Time date upon which such portion of the Merger Consideration became deliverable to the Company Shareholders (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Buyer or the SPAC, as applicable, free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer or the SPAC, as applicable, upon demand.
(i) Notwithstanding anything herein to the contrary, in the event that a Seller is not an “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended), the Merger Consideration deliverable to such Seller shall be solely in the form of cash (any Seller that receives cash in lieu of Buyer Exchangeable Shares pursuant to this Section 2.9(i), a “Non-Accredited Seller”). The amount of cash payable to a Non-Accredited Seller in respect of Merger Consideration pursuant to the foregoing sentence shall be equal to (i) with respect to the Closing Merger Consideration, the number of Buyer Exchangeable Shares that otherwise would have been deliverable to such Non-Accredited Seller in respect thereof (taking into account the Holdback Shares to be withheld from such Non-Accredited Seller in accordance with Section 2.6(d)) multiplied by $10.00, (ii) with respect to any Holdback Shares and Additional Shares that become deliverable pursuant to Section 2.18, the number of Holdback Shares and Additional Shares that otherwise would have been deliverable to such Non-Accredited Seller pursuant to Section 2.18 multiplied by $10.00, and (iii) with respect to Earnout Consideration, (A) the number of Buyer Exchangeable Shares that otherwise would have been deliverable to such Non-Accredited Seller in respect thereof multiplied by (B) the closing trading price for a SPAC Subordinate Voting Share on the principal securities exchange on which such security is traded on the date immediately preceding the date that such Earnout Consideration becomes deliverable to the Company Shareholders pursuant to the Investor Rights Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Glass House Brands Inc.), Merger Agreement (Glass House Brands Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time (but after the effective time of the Taxable Distribution Transaction) shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) Stockholder and each Optionholder shall cease to have any rights as a stockholder or an optionholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Closing Date and in any event not no later than five thirty (530) Business Days calendar days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock Stockholder a letter of transmittal in substantially the form attached hereto as Exhibit A B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates such Stockholder’s certificate formerly representing any Shares (each, a “Certificate”) in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, as soon as practicable thereafter, but no later than the later of ten (i) the Closing Date or (ii) five (510) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time (but after the effective time of the Taxable Distribution Transaction) represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) As promptly as practicable following the Closing Date and in any event no later than thirty (30) calendar days thereafter, the Company shall mail to each In-Money Optionholder an option termination agreement substantially in the form attached as Exhibit C (an “Option Termination Agreement”) and instructions for completing, executing and returning such Option Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. With respect to Company Entity Optionholders, Parent shall cause the Surviving Corporation or its designated payroll service provider to deliver to such Company Entity Optionholder the cash amount such Company Entity Optionholder has the right to receive pursuant to Section 2.09(a) on the next regularly scheduled payroll date that is at least ten (10) Business Days after Parent’s receipt of an Option Termination Agreement with respect to such Optionholder duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Parent may reasonably require in connection therewith (collectively, the “Option Termination Documents”). With respect to each Excluded Entity Optionholder, the Excluded Entity that employs such Excluded Entity Optionholder shall deliver or cause its designated payroll service provider to deliver to such Excluded Entity Optionholder the cash amount such Excluded Entity Optionholder has the right to receive pursuant to Section 2.09(a) on the next regularly scheduled payroll date that is at least ten (10) Business Days after Parent’s receipt of the Option Termination Documents. With respect to a non-employee Optionholder who is an In-Money Optionholder, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of the Option Termination Documents, pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the In-Money Options in respect of which the Option Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Option Termination Agreement.
(e) Each Target Company Stockholder and In-Money Optionholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate Certificate, and in respect of the In-Money Options cancelled pursuant to Section 2.09(a), from the Escrow Funds as provided in this Agreement and the Promissory NotesEscrow Agreement and on account of any Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders or the In-Money Optionholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety and Optionholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demanddemand at the discretion of Parent, and any such Target Company Stockholder or Optionholder who has not exchanged Certificates or delivered Option Termination Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereto in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of any Post-Closing Adjustment to which the Stockholders or Optionholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates or In-Money Options for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders or Optionholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Aegion Corp)
Surrender and Payment. (a) At Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the "Exchange Agent") for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, all (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares outstanding (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; or (ii) in certificates representing Shares to the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionExchange Agent).
(b) HoldingsEach holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a transfer agent appointed by Holdingsproperly completed letter of transmittal covering such Shares, shall act will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the exchange agent in Effective Time, represent for all purposes, only the right to receive such Merger (the “Exchange Agent”)Consideration. No interest will be paid or will accrue on such Merger Consideration.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder No certificate or scrip representing fractional shares of Target Company Parent Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting shall be issued upon the surrender of Certificates certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the applicable portion Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of Merger Consideration pursuant to Section 2.8(b)a stockholder of Parent. Holdings shallNotwithstanding any other provision of this Agreement, no later than the later each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the Closing Date or aggregate number of Shares represented thereby), (ii) five (5) Business Days after receipt In-The-Money Options who would otherwise have been entitled to receive a fraction of a Certificateshare of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, together with if such holder would otherwise have been entitled to receive a Letter fraction of Transmittal duly completed and validly executed a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in accordance with lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the instructions theretoclosing price of the Parent Common Stock on the NASDAQ National Market ("NASDAQ") (or, and any other customary documents that Holdings may reasonably require in connection therewithif the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, deliver such exchange) on the Closing Date, rounded down to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10nearest whole cent.
(d) Each Target Company Stockholder shall also be entitled No dividends or other distributions declared or made after the Effective Time with respect to any amounts that may be payable in Parent Common Stock with a record date after the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or accrued for other distributions with a record date after the benefit Effective Time previously paid with respect to such whole shares of Target Company Stockholders on Parent Common Stock, without interest and (ii) at the Promissory Note Principal Amountappropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock.
(e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be delivered paid to a Person (as defined below) other than the Person in whose name the surrendered Certificate is registeredregistered holder of such certificate or certificates, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable. For purposes of this Agreement, "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.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Usa Interactive)
Surrender and Payment. (a) At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) and each Optionholder shall cease to have any rights as a stockholder Stockholder of the Target Company; Company or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptionholder.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Effective Time and in any event not later than five two (52) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate (i) one or more Certificates representing, in the aggregate, the whole number of Parent Shares that such holder’s portion of holder has the Merger Consideration right to receive pursuant to Section 2.08(b) and (ii) a cash amount as provided in Section 2.8(b) 2.08(b), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11. Prior to the Effective Time, Parent shall provide to any Stockholder who is to receive in excess of $1,000,000 in connection with the transactions contemplated hereby, upon the written or email request of such Stockholder (or the Company on behalf of such Stockholder), a letter of transmittal, and any such Stockholder who shall deliver a duly completed letter of transmittal and the other items set forth in this Section 2.11(c) to the Exchange Agent on or prior to the Closing Date shall receive the amounts of Merger Consideration such Stockholder is entitled to receive hereunder on the Closing Date. At the election of any holder of Company Stock who is to receive in excess of $1,000,000 in connection with the transactions contemplated hereby, the Exchange Agent shall make any payment of Merger Consideration in excess of $1,000,000 by wire transfer.
(d) As promptly as practicable following the Effective Time and in any event not later than two (2) Business Days thereafter, the Company shall mail to each Optionholder and Warrantholder who has not exercised Options or Outstanding Warrants prior to Closing an option and warrant termination agreement (an “Optionholder Agreement”) and instructions for completing, executing and returning such Optionholder Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of an Optionholder Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, deliver to such Optionholder or Warrantholder (i) one or more Certificates representing, in the aggregate, the whole number of Parent Shares that such Optionholder or Warrantholder has the right to receive pursuant to Section 2.09(a) and (ii) a cash amount as provided in Section 2.09(a) with respect to the In-Money Options or Outstanding Warrant in respect of which the Optionholder Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Optionholder Agreement.
(e) Each Target Company Stockholder Stockholder, Optionholder and Warrantholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notescancelled In-Money Options and Outstanding Warrants from the Contingent Payments, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders Stockholders, Optionholders or Warrantholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Stockholders, Optionholders and Warrantholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Stockholder, Optionholder or Warrantholder who has not exchanged Certificates or delivered Letters of Transmittal or Optionholder Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Fund shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders, Optionholders or Warrantholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders Stockholders, Optionholders or Warrantholders 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
(i) No fractional shares of Parent Shares shall be issued as Merger Consideration in the Merger, but in lieu thereof each Stockholder otherwise entitled to a fractional share of Parent Shares will be entitled to receive, from the Exchange Agent in accordance with the provisions of this Section 2.11(i), a cash payment equal to the number of such fractional shares of Parent Shares multiplied by the numerical average of the volume weighted average prices on Nasdaq (as reported by Bloomberg, L.P.) for one Parent Share for the forty five (45) consecutive trading days immediately preceding the trading day prior to the applicable payment date. Fractional share interests will not entitle the owner thereof to vote or to any other rights (including the right to receive dividends or other distributions of Parent.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior the Company shall designate a nationally recognized commercial bank or trust company reasonably acceptable to the Effective Time shall automatically be cancelled and retired and shall cease Parent to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”) for the benefit of the holders of Shares who exchange their Shares in accordance with this Section 2.03. Prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of Shares, for exchange in accordance with this Section 2.03 promptly after the Effective Time, book-entry shares representing the Merger Consideration issuable to holders of Shares as of the Effective Time pursuant to Section 2.02(a) (such book-entry shares of Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 2.03(c) and other amounts payable in accordance with Section 2.03(e), the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment of or losses thereon shall relieve Parent from making the payments required by this Section 2.03 or elsewhere in this Agreement, or affect the amount payable in respect of the Shares, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, and
(ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any interest or other income from such investments shall be paid to and become income of Parent. The Exchange Fund shall not be used for any purpose other than as specified in this Section 2.03(a).
(b) As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to distribute the shares of Parent Common Stock into which the Shares have been converted pursuant to the Merger, which, in the case of Shares distributed in the Distribution, shall be distributed on the same basis as Shares were distributed in the Distribution and to the Persons who received Shares in the Distribution. Each holder of Shares shall be entitled to receive in respect of the Shares 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 this Section 2.03(b) (and cash in lieu of fractional shares of Parent Common Stock, as contemplated by Section 2.03(e), and any dividends or distributions and other amounts pursuant to Section 2.03(c)). The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder, except as contemplated by Section 2.03(c).
(c) As Subject to the following sentence, no dividends or other distributions declared after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of Parent Common Stock that are not able to be distributed by the Exchange Agent promptly as practicable after the Effective Time, whether due to a legal impediment to such distribution or otherwise. Subject to the effect of abandoned property, escheat, Tax or other Applicable Laws, following the date hereof and in distribution of any event not later than five (5) Business Days thereaftersuch previously undistributed shares of Parent Common Stock, Holdings there shall mail be paid to each the record holder of Target Company such shares of Parent Common Stock, without interest, (i) at the time of the distribution, the amount of cash payable in lieu of a fractional share of Parent Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration to which such holder is entitled pursuant to Section 2.8(b). Holdings shall, no later than 2.03(e) and the later amount of (i) dividends or other distributions with a record date after the Closing Date or Effective Time theretofore paid with respect to such whole shares of Parent Common Stock; and (ii) five (5) Business Days after receipt at the appropriate payment date, the amount of a Certificate, together dividends or other distributions with a Letter record date after the Effective Time but prior to the distribution of Transmittal duly completed such whole shares of Parent Common Stock and validly executed a payment date subsequent to the distribution of such whole shares of Parent Common Stock.
(d) All shares of Parent Common Stock issued upon the exchange of SpinCo Common Stock in accordance with the instructions theretoterms of this Section 2.03 (including any cash paid pursuant to Section 2.03(c) or Section 2.03(e)) shall be deemed to have been issued or paid, as the case may be, in full satisfaction of all rights pertaining to such shares of SpinCo Common Stock.
(e) No certificates or scrip representing fractional shares of Parent Common Stock or book-entry credit of the same shall be issued on conversion of SpinCo Common Stock, and such fractional share interests will not entitle the owner thereof to vote, or to any other customary documents rights of a stockholder of Parent. All fractional shares of Parent Common Stock that Holdings may reasonably require in connection therewith, deliver to the a holder of such Certificate such holder’s portion shares of SpinCo Common Stock would otherwise be entitled to receive as a result of the Merger Consideration shall be aggregated by the Exchange Agent. The Exchange Agent shall cause the whole shares obtained thereby to be sold on behalf of such holders of shares of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger, in the open market or otherwise, in each case at then-prevailing market prices, and in no case later than five Business Days after the time of the Distribution. The Exchange Agent shall make available the net proceeds thereof, subject to the deduction of the amount of any withholding Taxes as provided contemplated in Section 2.8(b2.03(i) and brokerage charges, commissions and conveyance and similar Taxes, on a pro rata basis, without interest, as soon as practicable to the holders of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger.
(f) The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or SpinCo Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Parent Common Stock or SpinCo Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed issuance of stock by SpinCo in connection with the Separation or shall otherwise be in proper form for transfer, other transactions contemplated by this Agreement or the Separation Agreement and (ii) any extraordinary cash dividends with respect to SpinCo Common Stock) with a record date occurring on or after the Person requesting such payment or delivery shall pay to Holdings 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 date hereof and prior to the reasonable satisfaction Effective Time; provided that nothing in this Section 2.03(f) shall be construed to permit SpinCo, Parent or Merger Sub to take any action with respect to its securities that otherwise is prohibited by the terms of Holdings that such Tax has been paid or is not payablethis Agreement.
(fg) Any portion of the Merger Consideration Exchange Fund (including proceeds of any investment thereof) that remains unclaimed by undistributed to the Target Company Stockholders ninety (90) days former holders of Shares on the date that is twelve months after the Effective Time shall be returned delivered to HoldingsParent, upon demand, and any such Target Company Stockholder former holders of Shares who has have not exchanged Certificates for the Merger Consideration theretofore received shares of Parent Common Stock in accordance with this Section 2.10 prior to that time 2.03 shall thereafter look only to Holdings Parent for delivery of the Merger Consideration. Notwithstanding Consideration to which they are entitled pursuant to Section 2.02(a), any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 2.03(e) and any dividends or other distributions with respect to the foregoingParent Common Stock to which they are entitled pursuant to Section 2.03(c) (subject to any abandoned property, Holdings escheat or similar Applicable Law).
(h) None of Parent, the Company, SpinCo, Merger Sub, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Certificates Person for any amounts paid Merger Consideration from the Exchange Fund (or dividends or distributions with respect to Parent Common Stock) or other cash delivered to a public official pursuant to applicable any abandoned property, escheat or similar LawsApplicable Law. Any amounts portion of the Exchange Fund remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, holders of Shares as of a date which is immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeAuthority shall, to the extent permitted by applicable Applicable Law, become the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gi) Any portion Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation, Parent and Merger Consideration made available Sub shall be entitled to deduct and withhold from the amounts otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of Tax law. If the Exchange Agent Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of SpinCo Common Stock in respect of any Dissenting Shares which the Exchange Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, made such deduction and withholding.
(j) From and after the Effective Time, the stock transfer books of SpinCo shall be returned to Holdingsclosed, upon demandand there shall be no further registration of transfers of Shares thereafter on the records of SpinCo.
Appears in 1 contract
Sources: Merger Agreement (Transportation Systems Holdings Inc.)
Surrender and Payment. (a) 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 Effective TimeClosing, all Shares outstanding 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 Company, no later than two (2) Business Days prior to the Effective Time shall automatically be cancelled and retired and shall cease to existClosing Date, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal (which shall 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 “Certificates”) or (y) transfer of the uncertificated shares of Company Stock (the “Uncertificated Shares”) to the Company) in the form attached set forth on Exhibit F hereto as Exhibit A (each, a “Letter of Transmittal”) and instructions for use the Certificates or Uncertificated Shares in effecting respect therefore, an amount in cash (in U.S. dollars) equal to the surrender amount of Certificates in exchange 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 portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or Specified Stockholder;
(ii) five to the Company, an amount in cash (5in U.S. dollars) Business Days after receipt 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 Certificateseparate segregated account, designated as such, for the sole purpose of disbursement to such holders pursuant to this Section 2.04;
(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 following the date hereof, the Company shall make the Letter of Transmittal available to all holders of Company Stock.
(b) After the Effective Time, upon surrender of such Certificates or Uncertificated Shares to the Company, together with a Letter of Transmittal Transmittal, duly completed and validly executed and delivered in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of or Uncertificated Shares shall be entitled to receive, from the Company, in exchange therefor, the aggregate Per Share Merger Consideration for such Company Stock in cash, as provided in set forth in, and subject to, the provisions of this Agreement, including Section 2.8(b) with respect to 2.02(a), and such Certificate so surrendered and the Certificate Certificates or Uncertificated Shares shall forthwith be cancelled. Until so surrenderedsurrendered as contemplated by, and in accordance with, this Section 2.04, each outstanding Certificate that prior to or Uncertificated Shares shall be deemed at any time after the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence represent only the right to receive the portion aggregate Per Share Merger Consideration, for such Company Stock in cash, as set forth in, and subject to, the provisions of the Merger Consideration as provided in this Agreement, including Section 2.8(b2.02(a). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(ec) If any portion of the Per Share Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Company any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of Holdings the Company that such Tax tax has been paid or is not payable.
(fd) After the Effective Time, there shall be no further registration of transfers of shares 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).
(e) Any portion of the Merger Aggregate Closing Consideration made available to the Company pursuant to Section 2.04(a) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Stock six (906) days months after the Effective Time shall be returned to HoldingsBuyer, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Stock for the Per Share Merger Consideration in accordance with this Section 2.10 2.04 prior to that time shall thereafter look only to Holdings the Company for delivery payment of the Per Share Merger Consideration, as set forth in, and subject to, the provisions of this Agreement, including Section 2.02(a), in respect of such shares without any interest thereon. Notwithstanding the foregoing, Holdings Buyer shall not be liable to any holder of Certificates shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaws.
(gf) Any portion Promptly after the date hereof, the Company shall furnish to each holder of a Company Stock Option and 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 Merger Consideration made available Company to be effected on the Exchange Agent in respect of any Dissenting Shares Closing Date. Buyer shall be returned responsible for ensuring that all payments to Holdingsbe 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, upon demandand Buyer shall be liable to each holder of a Company Stock Option and each holder of a Company Restricted Share for any failure 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) At the Effective Time, all Shares Shares, all Options, all Outstanding Warrants and all Incentive Units outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) ), each Optionholder, Warrantholder and each holder of Incentive Units shall cease to have any rights as a stockholder Stockholder of the Target Company; , an Optionholder, a Warrantholder or (ii) in the case a holder of uncertificated shares, such holder shall cease Incentive Units except as to have any rights receive payments with respect thereto as a stockholder of the Target Company without any further actionprovided herein.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof Effective Time and in any event not later than five two (52) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal (a “Letter of Transmittal,” in the form attached hereto as Exhibit A (a “Letter of Transmittal”B) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration Certificate, a cash amount as provided in Section 2.8(b) 2.08(b), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target As promptly as practicable following the Closing Date and in any event not later than two (2) Business Days thereafter, the Surviving Corporation shall mail or otherwise deliver (i) to each Optionholder and Warrantholder who has not exercised Options or Outstanding Warrants prior to Closing an option or warrant termination agreement, as applicable (an “Optionholder Agreement,” as set forth in the form attached hereto as Exhibit C), and (ii) to each holder of Incentive Units an incentive unit termination agreement (the “Incentive Unit Agreement,” as set forth in the form attached hereto as Exhibit D), in each case, together with instructions for completing, executing and returning such Optionholder Agreement or Incentive Unit Agreement to the Company Stockholder in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. With respect to Optionholders or Warrantholders that are not Company employees, Parent and the Surviving Corporation shall also be entitled cause the Exchange Agent to promptly deliver to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate Optionholder or Warrantholder a cash amount as provided in this Agreement and the Promissory NotesSection 2.09 with respect to any unexercised Options or Outstanding Warrants, at the respective time and subject provided that such Person has delivered to the contingencies specified herein Surviving Corporation a duly completed and thereinvalidly executed Optionholder Agreement. The Surviving Corporation shall pay the applicable portion of the Merger Consideration to a respective Optionholder or holder of Incentive Units that is an employee of the Company with respect to all In-Money Options or Incentive Units held by such employee through payroll during the first scheduled payroll that is at least three (3) Business Days following the Effective Time, provided that such employee has delivered to the Surviving Corporation a duly completed and validly executed Optionholder Agreement or Incentive Unit Agreement, as applicable.
(e) Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders the Effective Time Holders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Effective Time Holders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Effective Time Holder who has not exchanged Certificates or delivered Letters of Transmittal, Optionholder Agreements or Incentive Unit Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Fund shall be held and distributed to the Effective Time Holders entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Effective Time Holders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings (i) any amounts remaining in the General Indemnity Escrow and not otherwise subject to a pending Direct Claim or Third Party Claim for indemnification shall, promptly following the twelve (12) month anniversary of the Closing Date, be distributed to the Effective Time Holders, and (ii) any amounts remaining in the Tax Indemnity Escrow and not otherwise subject to a Direct Claim or Third Party Claim for a Specific Tax Indemnity Matter shall, promptly following the twelve (12) month anniversary of the Closing Date, be distributed to the Effective Time Holders. Further, notwithstanding the foregoing, Parent and the Surviving Corporation shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders the Effective Time Holders 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand. In the event the Merger Consideration payable pursuant to this Agreement exceeds the amount owed to any Effective Time Holder that has perfected his/her/its appraisal rights and obtained a “fair value” pursuant to Section 262 of the DGCL, the amount of such excess shall be awarded (i) fifty percent (50%) to Parent, and (ii) fifty percent (50%) to those Effective Time Holders that had not exercised their appraisal rights, in accordance with each such Effective Time Holder’s Pro Rata Share.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares Units outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) Units shall cease to have any rights as a stockholder member of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Company shall mail provide to each holder of Target Company Common Stock Units a letter of transmittal in the form attached hereto as Exhibit A mutually agreed to between the Parent and the Company (each, a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for receiving the applicable portion of Merger Consideration pursuant to Section 2.8(b)this Agreement. Holdings Parent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration applicable Unitholder or Warrantholder a cash amount as provided in Section 2.8(b2.08(a) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledor Section 2.09, as applicable. Until so surrenderedUnless otherwise provided herein, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) no interest shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, paid or shall accrue on any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10such cash.
(dc) Each Target Company Stockholder Unitholder and Warrantholder shall also be entitled to such Unitholder’s and Warrantholder’s Pro Rata Share of any amounts that may be become payable in the future in respect of such Unit and the Shares formerly represented by such Certificate cancelled Warrants from the Member Representative Expense Fund (if any), as provided in this Agreement Agreement, and the Promissory Notes, at the respective time and subject to the contingencies as specified herein and therein. Unless otherwise provided herein or illustrated in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountConsideration Spreadsheet.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(fd) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time Closing shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates held by Parent for the Merger Consideration benefit of the applicable Unitholder or Warrantholder until the earlier of (i) payment being made in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery 2.11(b) and (ii) the one (1) year anniversary of the Merger ConsiderationClosing. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates Unitholder or Warrantholder for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all MAI shall appoint its stock transfer agent as agent (the "Exchange Agent") for the purpose of exchanging certificates representing Shares outstanding immediately prior to for the Merger Consideration. Promptly after the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and but in any event not later than within five (5) Business Days business days thereafter), Holdings shall mail MAI will send, or will cause the Exchange Agent to send, to each holder of Target Company Common Stock Shares at the Effective Time (i) a letter of transmittal for use in such exchange (which shall specify that delivery of the form attached hereto as Exhibit A Merger Consideration shall be effected, and risk of loss and title to the certificates representing DHS Common Stock shall pass, only upon proper delivery of the certificates representing Shares to the Exchange Agent), and (a “Letter of Transmittal”ii) and instructions for use in effecting the surrender of Certificates the certificates representing Shares in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company certificates representing MAI Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the constituting Merger Consideration. Notwithstanding the foregoing, Holdings neither the Exchange Agent nor any party hereto shall not be liable to any a holder of Certificates certificates theretofore representing Shares for any amounts amount which may be required to be paid to a public official pursuant to any applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretolaw.
(gb) Any portion Each holder of Shares that have been converted into a right to receive the Merger Consideration made available Consideration, upon surrender to the Exchange Agent of a certificate or certificates representing such Shares, together with a properly completed letter of transmittal covering such Shares, will be entitled to receive the Merger Consideration payable in respect of such Shares and any Dissenting Shares shall be returned dividends payable pursuant to HoldingsSection 1.03(f). Until so surrendered, upon demand.each such certificate
Appears in 1 contract
Sources: Agreement and Plan of Merger (Diagnostic Health Services Inc /De/)
Surrender and Payment. (a) At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer the Company shall appoint an exchange agent appointed by Holdings, shall (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five the Written Consent has been obtained pursuant to Section 5.04 (5) Business Days thereaftera), Holdings the Corporation shall mail to each holder of Target Company Common Stock (including all holders of Company Class B Stock and Company Series A Convertible Preferred Stock) a letter of transmittal in substantially the form attached hereto as Exhibit A B (a “Letter of Transmittal”) which shall contain the Stockholder Notice, as set forth in Section 5.04 (b) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b), such surrender and exchange to be administered by the Exchange Agent. Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a CertificateCertificate (or properly executed Affidavit of Loss of Certificate as set forth in Section 2.16), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash and stock amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Company shall mail to each Optionholder an option termination agreement substantially in the form attached as Exhibit C (an “Option Termination Agreement”) and instructions for completing, executing and returning such Option Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.09. With respect to employee Optionholders, Parent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that Parent may reasonably require in connection therewith, cause the Company’s current payroll provider, on behalf of the Company, to deliver such Optionholder the cash amount such Optionholder has the right to receive pursuant to Section 2.09(a). With respect to a non-employee Optionholder, the Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, pay to such Optionholder a cash amount as provided in Section 2.09(a) with respect to the In-Money Options in respect of which the Option Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon delivery of any Option Cancellation Agreement.
(e) Each Target Company Stockholder and Optionholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate and the cancelled In-Money Options from the Indemnification Escrow Fund as provided in this Agreement and on account of the Promissory NotesPost-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders or Optionholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety and Optionholders six (906) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder or Optionholder who has not exchanged Certificates or delivered Option Termination Agreements for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Indemnification Escrow Fund shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders or Optionholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders or Optionholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Fusion Telecommunications International Inc)
Surrender and Payment. (a) At the Effective Time, all Company Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either exist and each Stockholder (i) each and any other holder of a certificate formerly representing any Shares (each, a “Certificate”Company Shares) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following after the date hereof and in any event not later than five (5) Business Days thereafterEffective Time, Holdings the Surviving Corporation shall mail send to each holder of Target Company Common Stock Holder a letter of transmittal in (the form attached hereto as Exhibit A (a “Letter of Transmittal”) in a form approved by Parent and the Company and instructions for use in effecting the surrender of Certificates in exchange for Company Securities, including the certificates representing Company Shares, and receiving the applicable portion of Merger Total Share Consideration pursuant to as set forth in Section 2.8(b). Holdings 2.08.
(c) The Parent shall, no later than the later of (i) the Closing Date or (ii) five (5) fifteen Business Days after receipt from a Company Holder of a Certificatestock certificate or certificates representing such Stockholder’s Company Shares, as applicable, together with a completed Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver to such Company Holder, a stock certificate representing the holder of Closing Shares to which such Certificate Company Holder is entitled pursuant to Section 2.08, provided that if such holder’s portion of Company Holder holds Non-Accredited Shares, the Merger Consideration as provided Parent shall deliver the cash payment, if any, contemplated in Section 2.8(b2.08(b)(vii) with respect to such Certificate so surrendered Non-Accredited Shares.
(d) The Parent shall, no later than fifteen Business Days after the date that the conditions for the release of any Earnout Shares are satisfied in accordance with Section 5.11, deliver to each Company Holder (other than holders of Non-Accredited Shares), a stock certificate, or at the Company Holder’s discretion, a book entry, representing such Earnout Shares to which such Company Holder is entitled pursuant to Section 2.08 and Section 5.11, provided that such Company holder has previously delivered a stock certificate or certificates representing such Stockholder’s Company Shares, as applicable, together with a completed Letter of Transmittal any other customary documents that the Parent may reasonably require in connection therewith.
(e) The Holdback Amount shall be held by the Parent and released in accordance with Section 8.06.
(f) No holder of Company Securities shall be entitled to receive a fractional share of Parent Common Stock. In the event that any holder of Company Securities would otherwise be entitled to receive a fractional share of Parent Common Stock (after aggregating all shares and fractional shares of Parent Common Stock issuable to such holder), then such holder will receive an aggregate number of shares of Parent Common Stock rounded up or down to the nearest whole share (with 0.5 being rounded up).
(g) The Parent intends to issue the Merger Shares as provided in this Agreement pursuant to a “private placement” exemption or exemptions from registration under Section 4(2) of the Securities Act and/or Regulation D promulgated under the Securities Act and exemptions from qualification under applicable state securities laws. Parent and the Certificate Company shall forthwith comply with all applicable provisions of and rules under the Securities Act and applicable state securities laws in connection with the offering and issuance of the Merger Shares pursuant to this Agreement. The Merger Shares will be cancelled. Until so surrendered“restricted securities” under the Federal and state securities laws and cannot be offered or resold except pursuant to registration under the Securities Act or an available exemption from registration.
(h) Notwithstanding any provision of this Agreement to the contrary, each Company Shares that are outstanding Certificate that immediately prior to the Effective Time represented and which are held by stockholders who have exercised and perfected appraisal rights for such shares of Target Company Common Stock in accordance with the DGCL (other than collectively, the “Dissenting Shares”) shall not be converted into or represent the right to receive Merger Shares. Such stockholders shall be entitled to receive payment of the appraised value of such shares held by them in accordance with the DGCL, unless and until such stockholders fail to perfect or effectively withdraw or otherwise lose their appraisal rights under the DGCL. All Dissenting Shares held by stockholders who shall have failed to perfect or who effectively shall have withdrawn or lost their rights to appraisal of such shares under the DGCL shall thereupon be deemed from to have been converted into and after to have become exchangeable for, as of the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided payable with respect to such shares in accordance with Section 2.8(b). If after 2.08, without any interest thereon, upon the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as surrender in the manner provided in this Section 2.10.
(d) Each Target 2.09. The Company Stockholder shall also be entitled to any amounts that may be payable in give the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that Parent (i) prompt notice of any demands for appraisal received by the Company, withdrawals of such Certificate shall be properly endorsed or shall otherwise be in proper form for transferdemands, and any other related instruments served pursuant to the DGCL and received by the Company and (ii) the Person requesting such payment or delivery opportunity to direct all negotiations and proceedings with respect to demands for appraisal under the DGCL. The Company shall pay to Holdings any transfer or other Tax required as a result of such payment to a Person other than not, except with the registered holder of such Certificate or establish to the reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion prior written consent of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned Parent, make any payment with respect to Holdings, upon demand, and any demands for appraisal or offer to settle or settle any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled theretodemands.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement (VNUE, Inc.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, Parent shall act as the exchange agent in the Merger (the “Exchange Agent”) for the purpose of exchanging certificates representing Company Shares (a “Certificate”) for the Closing Merger Consideration set forth in Section 2.1. The shares of Parent Common and cash to be received as consideration pursuant to Sections 2.1(a)(i)-(ii), 2.1(b)(i)(A)-(D), 2.1(b)(ii)(A)-(D) and 2.1(b)(iii)(A)-(D), together with cash in lieu of fractional shares as specified in Section 2.7, is referred to herein as the “Closing Merger Consideration.” Prior to the Effective Time, Parent shall provide to the Company, and the Company shall send to each holder of record of Company Shares as of the Effective Time, 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 to the Exchange Agent).
(cb) As promptly as practicable following Securityholders whose rights have been converted into rights to receive the date hereof and in any event not later than five (5) Business Days thereafterClosing Merger Consideration, Holdings shall mail upon surrender to each holder the Exchange Agent of Target a Certificate or Certificates representing Company Common Stock Shares, together with a properly completed letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant covering such Company Shares, will be entitled to Section 2.8(b). Holdings shall, no later than the later of receive (i) the Closing Date or Merger Consideration payable in respect of such Company Shares (less Escrow Consideration to be deposited with the Escrow Agent on such holders’ behalf pursuant to Section 2.3 and Article IX), and (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any dividends or other customary documents that Holdings may reasonably require in connection therewith, deliver distributions to the holder of which such Certificate such holder’s portion of the Merger Consideration as provided in holders are entitled under Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled2.4(f). Until so surrendered, each outstanding Certificate that prior has been converted into the right to receive the Effective Time represented shares of Target Company Common Stock (other than Dissenting SharesClosing Merger Consideration pursuant to Section 2.1(d) shall be deemed from and shall, after the Effective Time, represent for all purposes, to evidence purposes only the right to receive such Closing Merger Consideration and the portion right to receive any dividends or other distributions payable pursuant to Section 2.4(f). For all Certificates and properly completed letters of transmittal covering such Company Shares delivered to Parent on or before the Closing Date, the Exchange Agent shall send, or cause Parent’s transfer agent to send, the Closing Merger Consideration payable to Securityholders pursuant to the foregoing (i) with respect to the Closing Cash Consideration, on the Closing Date and (ii) with respect to the certificates representing shares of Parent Common, within four (4) Business Days of the Closing Date. The Exchange Agent shall send the Closing Merger Consideration as provided in Section 2.8(b). If after payable to Securityholders with respect to any Certificates and properly completed letters of transmittal not received on or prior to the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10Closing Date within four (4) Business Days of receipt.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(ec) If any portion of the Closing Merger Consideration is to be delivered paid to a Person (as defined in Section 4.3) other than the Person registered holder of Company Shares represented by the Certificate or Certificates surrendered in whose name the surrendered Certificate is registeredexchange therefor, it shall be a condition to such delivery payment that (i) such the Certificate or Certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) accompanied by all documents required to evidence and effect the transfer and that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Company Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable.
(fd) Any portion After the Effective Time, there shall be no further registration of the Merger Consideration that remains unclaimed by the Target transfers of Company Stockholders ninety (90) days Shares. If, after the Effective Time Time, Certificates are presented to the Surviving Corporation or Parent, they shall be returned to Holdings, upon demandcancelled and exchanged for the consideration provided for, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with the procedures set forth, in this Section 2.10 prior to that time Article II.
(e) Neither Parent, the Company nor the Surviving Corporation shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates Company Shares for any amounts amount paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target holders of Company Stockholders two Shares three (3) years after the Effective Time (or such earlier date, immediately date prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entitygovernmental entity) shall becomeshall, to the extent permitted by applicable Lawlaw, become the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion No dividends, interest or other distributions with respect to Parent Common constituting part of the Closing Merger Consideration made available shall be paid to the Exchange Agent holder of any unsurrendered Certificates representing Company Shares until such Certificates are surrendered as provided in this Section 2.4. 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 any Dissenting Shares shall be returned to Holdingssuch shares of Parent Common on a date subsequent to, upon demandand in respect of a record date after, the Effective Time.
Appears in 1 contract
Sources: Merger Agreement (Logicvision Inc)
Surrender and Payment. (a) At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of an Option shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer agent appointed by Holdings, Buyer shall appoint the Escrow Agent to act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) ten Business Days thereafter, Holdings unless previously delivered by the Company, the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal in substantially the form attached hereto as Exhibit A B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date (or if the Closing Date is not a Business Day, the first Business Day after the Closing Date) or (ii) five (5) two Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) With respect to a Vested Optionholder, Buyer shall cause the Surviving Corporation to pay to such Vested Optionholder on the Closing Date (or if the Closing Date is not a Business Day, the first Business Day after the Closing Date), the cash amount as provided in Section 2.9(a) and the Consideration Spreadsheet, less any required Tax withholding. For payments made, if any, to a Vested Optionholder pursuant to other provisions of this Agreement on a date after the Closing Date, the Stockholders’ Representative and Buyer will cooperate to promptly make such payments in a manner (including through the Surviving Corporation or its applicable Affiliate, if applicable) that ensures proper Tax withholding and information reporting, as required by applicable Law and, subject to the foregoing, to ensure that payments are paid on the same schedule and under the same terms and conditions as apply to payments to Stockholders generally.
(e) Each Target Company Stockholder and each Vested Optionholder set forth in Exhibit 2.9 shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Stockholder’s Certificate and such Vested Optionholder’s cancelled Vested Options from the Escrow Funds as provided in this Agreement and the Promissory NotesEscrow Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders or Vested Optionholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days six months after the Effective Time shall be returned to HoldingsBuyer, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Buyer for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Buyer shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders two years one year 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings Buyer free and clear of any claims or interest of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsBuyer, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) HoldingsPrior to the Effective Time, or a transfer agent appointed by HoldingsParent shall appoint PNC Bank, shall act National Association, (solely in its capacity as the exchange agent in the Merger (payments administrator, the “Exchange Agent”)) to act as the payment’s administrator in the Merger. All fees and expenses of the Exchange Agent shall be borne by the Company and shall be included in Transaction Expenses.
(c) As promptly as practicable following the date hereof and in any event not no later than five (5) two Business Days thereafter, Holdings Parent shall cause the Exchange Agent shall mail to each holder of Target Company Common Stock Shares a letter of transmittal in substantially the form attached hereto as Exhibit A G (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for such holder’s receipt of the applicable portion of Merger Consideration per the Closing Merger Consideration Schedule pursuant to Section 2.8(b2.10(b). Holdings shallParent shall cause the Exchange Agent to, no later than the later of (i) the Closing Date or (ii) five (5) two Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the such holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.10(b) with respect to the former Shares held by such Certificate so surrendered and the Certificate holder. Unless otherwise provided herein, no interest shall forthwith be cancelledpaid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Capital Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b)herein. If after the Effective Time, any Certificate is if presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.12.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and from the Promissory NotesHoldback (if any) or on account of a Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountMerger Consideration.
(e) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 EntityAuthority) shall be returned to Parent, shall become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto. Parent shall not be liable to any Stockholder for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior the Company shall designate a nationally recognized commercial bank or trust company reasonably acceptable to the Effective Time shall automatically be cancelled and retired and shall cease Parent to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”) for the benefit of the holders of Shares who exchange their Shares in accordance with this Section 2.03. Prior to the Effective Time, Parent shall deposit, or shall cause to be deposited, with the Exchange Agent, for the benefit of the holders of Shares, for exchange in accordance with this Section 2.03 promptly after the Effective Time, book-entry shares representing the Merger Consideration issuable to holders of Shares as of the Effective Time pursuant to Section 2.02(a) (such book-entry shares of Parent Common Stock, together with any dividends or distributions with respect thereto pursuant to Section 2.03(c) and other amounts payable in accordance with Section 2.03(e), the “Exchange Fund”). The Exchange Agent shall, pursuant to irrevocable instructions from Parent, deliver the Merger Consideration out of the Exchange Fund. The cash portion of the Exchange Fund shall be invested by the Exchange Agent as directed by Parent; provided that (i) no such investment of or losses thereon shall relieve Parent from making the payments required by this Section 2.03 or elsewhere in this Agreement, or affect the amount payable in respect of the Shares, and following any losses Parent shall promptly provide additional funds to the Exchange Agent in the amount of any such losses, and (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement. Any interest or other income from such investments shall be paid to and become income of Parent. The Exchange Fund shall not be used for any purpose other than as specified in this Section 2.03(a).
(b) As promptly as practicable after the Effective Time, Parent shall cause the Exchange Agent to distribute the shares of Parent Common Stock into which the Shares have been converted pursuant to the Merger, which, in the case of Shares distributed in the Distribution, shall be distributed on the same basis as Shares were distributed in the Distribution and to the Persons who received Shares in the Distribution. Each holder of Shares shall be entitled to receive in respect of the Shares 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 this Section 2.03(b) (and cash in lieu of fractional shares of Parent Common Stock, as contemplated by Section 2.03(e), and any dividends or distributions and other amounts pursuant to Section 2.03(c)). The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to Parent Common Stock held by it from time to time hereunder, except as contemplated by Section 2.03(c).
(c) As Subject to the following sentence, no dividends or other distributions declared after the Effective Time with respect to Parent Common Stock shall be paid with respect to any shares of Parent Common Stock that are not able to be distributed by the Exchange Agent promptly as practicable after the Effective Time, whether due to a legal impediment to such distribution or otherwise. Subject to the effect of abandoned property, escheat, Tax or other Applicable Laws, following the date hereof and in distribution of any event not later than five (5) Business Days thereaftersuch previously undistributed shares of Parent Common Stock, Holdings there shall mail be paid to each the record holder of Target Company such shares of Parent Common Stock, without interest, (i) at the time of the distribution, the amount of cash payable in lieu of a fractional share of Parent Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration to which such holder is entitled pursuant to Section 2.8(b). Holdings shall, no later than 2.03(e) and the later amount of (i) dividends or other distributions with a record date after the Closing Date or Effective Time theretofore paid with respect to such whole shares of Parent Common Stock; and (ii) five (5) Business Days after receipt at the appropriate payment date, the amount of a Certificate, together dividends or other distributions with a Letter record date after the Effective Time but prior to the distribution of Transmittal duly completed such whole shares of Parent Common Stock and validly executed a payment date subsequent to the distribution of such whole shares of Parent Common Stock.
(d) All shares of Parent Common Stock issued upon the exchange of SpinCo Common Stock in accordance with the instructions theretoterms of this Section 2.03 (including any cash paid pursuant to Section 2.03(c) or Section 2.03(e)) shall be deemed to have been issued or paid, as the case may be, in full satisfaction of all rights pertaining to such shares of SpinCo Common Stock.
(e) No certificates or scrip representing fractional shares of Parent Common Stock or book-entry credit of the same shall be issued on conversion of SpinCo Common Stock, and such fractional share interests will not entitle the owner thereof to vote, or to any other customary documents rights of a stockholder of Parent. All fractional shares of Parent Common Stock that Holdings may reasonably require in connection therewith, deliver to the a holder of such Certificate such holder’s portion shares of SpinCo Common Stock would otherwise be entitled to receive as a result of the Merger Consideration shall be aggregated by the Exchange Agent. The Exchange Agent shall cause the whole shares obtained thereby to be sold on behalf of such holders of shares of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger, in the open market or otherwise, in each case at then-prevailing market prices, and in no case later than five Business Days after the time of the Distribution. The Exchange Agent shall make available the net proceeds thereof, subject to the deduction of the amount of any withholding Taxes as provided contemplated in Section 2.8(b2.03(i) and brokerage charges, commissions and conveyance and similar Taxes, on a pro rata basis, without interest, as soon as practicable to the holders of SpinCo Common Stock that would otherwise be entitled to receive such fractional shares of Parent Common Stock pursuant to the Merger.
(f) The Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock or SpinCo Common Stock), extraordinary cash dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Parent Common Stock or SpinCo Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed issuance of stock by SpinCo in connection with the Separation or shall otherwise be in proper form for transfer, other transactions contemplated by this Agreement or the Separation Agreement and (ii) any extraordinary cash dividends with respect to SpinCo Common Stock) with a record date occurring on or after the Person requesting such payment or delivery shall pay to Holdings 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 date hereof and prior to the reasonable satisfaction Effective Time; provided that nothing in this Section 2.03(f) shall be construed to permit SpinCo, Parent or Merger Sub to take any action with respect to its securities that otherwise is prohibited by the terms of Holdings that such Tax has been paid or is not payablethis Agreement.
(fg) Any portion of the Merger Consideration Exchange Fund (including proceeds of any investment thereof) that remains unclaimed by undistributed to the Target Company Stockholders ninety (90) days former holders of Shares on the date that is twelve months after the Effective Time shall be returned delivered to HoldingsParent, upon demand, and any such Target Company Stockholder former holders of Shares who has have not exchanged Certificates for the Merger Consideration theretofore received shares of Parent Common Stock in accordance with this Section 2.10 prior to that time 2.03 shall thereafter look only to Holdings Parent for delivery of the Merger Consideration. Notwithstanding Consideration to which they are entitled pursuant to Section 2.02(a), any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 2.03(e) and any dividends or other distributions with respect to the foregoingParent Common Stock to which they are entitled pursuant to Section 2.03(c) (subject to any abandoned property, Holdings escheat or similar Applicable Law).
(h) None of Parent, the Company, SpinCo, Merger Sub, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Certificates Person for any amounts paid Merger Consideration from the Exchange Fund (or dividends or distributions with respect to Parent Common Stock) or other cash delivered to a public official pursuant to applicable any abandoned property, escheat or similar LawsApplicable Law. Any amounts portion of the Exchange Fund remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, holders of Shares as of a date which is immediately prior to such time when the as such amounts would otherwise escheat to or become property of any Governmental Entity) shall becomeAuthority shall, to the extent permitted by applicable Applicable Law, become the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gi) Any portion Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation, Parent and Merger Consideration made available Sub shall be entitled to deduct and withhold from the amounts otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of Tax law. If the Exchange Agent Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, so withholds amounts, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of SpinCo Common Stock in respect of any Dissenting Shares which the Exchange Agent, the Surviving Corporation, Parent or Merger Sub, as the case may be, made such deduction and withholding.
(j) From and after the Effective Time, the stock transfer books of SpinCo shall be returned to Holdingsclosed, upon demandand there shall be no further registration of transfers of Shares thereafter on the records of SpinCo.
Appears in 1 contract
Sources: Merger Agreement (Westinghouse Air Brake Technologies Corp)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not No later than five (5) Business Days thereafterprior to the Effective Time, Holdings Parent shall mail send to each record holder of Target shares of Company Common Stock a letter of transmittal in at the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shallEffective Time, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with 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 Company Certificates to Parent) for use in such exchange.
(b) Upon surrender by a Company Stockholder of all of his, her or its Company Certificates to Parent together with a duly completed and validly executed Letter of Transmittal, each such holder shall be entitled, following the Effective Time, to receive a number of shares of Parent Common Stock equal to the Number of Parent Shares Per Holder for such holder plus the right to receive a portion of the Cash Consideration in accordance with the instructions thereto, terms of Section 3.7. Until so surrendered and any other customary documents that Holdings may reasonably require in connection therewith, deliver subject to the holder terms set forth in Section 3.3, each such Company Certificate shall represent after the Effective Time for all purposes only the right to receive the shares of such Certificate such holder’s Parent Common Stock payable in respect thereof plus the right to receive a portion of the Merger Cash Consideration as provided in accordance with the terms of Section 2.8(b3.7.
(c) All consideration paid upon the surrender of Company Certificates in accordance with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) terms hereof shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock formerly represented by such Company Certificate, and from and after the Effective Time, for all purposes, to evidence there shall be no further registration of transfers of shares of Company Stock on the right to receive the portion stock transfer books of the Merger Consideration as provided in Section 2.8(b)Surviving Corporation. If If, after the Effective Time, any Certificate is Company Certificates are presented to Holdingsthe Surviving Corporation, it they shall be cancelled and exchanged as for the shares of Parent Common Stock plus the right to receive a portion of the Cash Consideration in accordance with the terms of Section 3.7 provided for, and in accordance with the procedures set forth, in this Section 2.10Article 3.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates shares of Company Stock for any amounts consideration paid to a public official Governmental Authority pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target holders of shares of Company Stockholders 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 EntityAuthority) shall automatically become, to the extent permitted by applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(ge) Any portion The shares of Parent Common Stock to be issued to the Company Stockholders pursuant to this Article 3 will be issued in a transaction exempt from registration under (i) the Securities Act, by reason of Section 4(2) thereof and Rule 506 of Regulation D thereunder, and (ii) applicable state securities Laws. Such shares will not, at the Effective Time, have been registered under the Securities Act or any applicable state securities Laws, and no such shares may be sold or otherwise transferred unless (i) the sale or other transfer of such shares is registered under the Securities Act, (ii) the holder of such shares delivers to Parent an opinion of counsel, in form and substance reasonably acceptable to Parent and its counsel, to the effect that such shares have been sold or otherwise transferred pursuant to exemptions from the registration requirements of the Merger Consideration made available Securities Act and applicable state securities Laws, or (iii) the holder of such shares provides Parent and its counsel with reasonable assurance, as set forth in customary written documentation executed by such holder and its broker, that such shares have been sold or otherwise transferred pursuant to Rule 144 under the Securities Act (or a successor rule thereto). The shares of Parent Common Stock to be issued to the Exchange Agent in respect of any Dissenting Shares Company Stockholders pursuant to this Article 3 shall be returned represented by stock certificates that are countersigned by the transfer agent for the Parent Common Stock and bear a restrictive legend (and are subject to Holdingsstop-transfer instructions) consistent with the foregoing.
(f) No fractional shares of Parent Common Stock shall be issued in connection with the Merger, and no certificates or scrip for any such fractional shares shall be issued. Any holder of Company Stock who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable to such holder) shall, in lieu of such fraction of a share and upon demandsurrender of such holder’s Company Certificate(s), be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying (i) such fraction, by (ii) the Closing Share Value.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.11, either (i) each holder of a certificate formerly representing any Shares (each, a “Share Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof receipt of the Requisite Company Vote and in any event not later than five (5) Business Days thereafterevent, Holdings prior to the Closing, the Exchange Agent shall mail to each holder of Target Company Common Stock Shares a letter of transmittal in the form attached hereto as Exhibit A to be negotiated in good faith between Parent and the Company and agreed to prior to the Closing (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Share Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.10(b). Holdings The Exchange Agent shall, no later than the later of (iA) the third Business Day following the Closing Date Date, or (iiB) five (5) Business Days after receipt of a CertificateShare Certificate or Lost Stock Affidavit, as the case may be, together with (i) a Letter of Transmittal and (ii) a Lock-Up Agreement effective as of the Effective Time, each duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of the Shares represented by such Share Certificate such holder’s portion of or Lost Stock Affidavit, as the Merger Consideration case may be, a cash amount as provided in Section 2.8(b2.10(b) with respect to such Share Certificate so surrendered or delivery of Lost Stock Affidavit, as the case may be, and the any such Share Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Share Certificate. Until so surrendered, each outstanding Share Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.10(b). If If, after the Effective Time, any Share Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.13.
(dc) Each Target Company Stockholder Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such a Share Certificate from the Post-Closing Adjustment Escrow Shares Funds, as provided for in this Agreement and the Promissory NotesEscrow Agreement, at the respective time times and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders Shareholders on the Promissory Note Principal AmountMerger Consideration.
(ed) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Share Certificate is registered, it shall be a condition to such delivery payment that (iA) such Share Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, with an accompanying Letter of Transmittal to the same effect, and (iiB) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax required as a result of such payment to a Person other than the registered holder of such Share Certificate or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fe) Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Securityholders twelve (9012) days months after the Effective Time shall be automatically returned to Holdings, upon demandParent, and any such Target Company Stockholder Securityholder who has not exchanged Share Certificates or delivered a Lost Stock Affidavit for the Merger Consideration in accordance with this Section 2.10 2.13 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger ConsiderationConsideration (subject to abandoned property, escheat or other similar Law) as general creditors thereof with respect to the payment of any Merger Consideration that may be payable upon surrender of any Share Certificates held by such holders, as determined pursuant hereto, without any interest thereon; provided, that any such portion of the Merger Consideration payable from the Post-Closing Adjustment Escrow Shares Fund shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement and on account of the Post-Closing Adjustment, at the respective times and subject to the contingencies specified herein and therein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Share Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (ChaSerg Technology Acquisition Corp)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately Parent, with the Company’s prior to the Effective Time approval (which shall automatically not be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; unreasonably withheld or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdingsdelayed), shall act as the exchange appoint an agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion purpose of exchanging for the Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents certificates that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that immediately prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting the “Certificates”), and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Concurrently with the Effective Time, Parent shall deposit, or shall cause to be deposited with, the Exchange Agent for the benefit of the holders of shares of Company Stock, (i) a cash amount in immediately available funds necessary for the Exchange Agent to make payments under Section 2.02(a) and (ii) subject to Parent’s option in Section 2.03(b) to provide uncertificated book-entry shares, certificates representing shares of Parent Stock into which shares of Company Stock are converted in the Merger, in each case, for exchange in accordance with this Article 2. The Merger Consideration into which shares of Company Stock are converted pursuant to the Merger shall be deemed from and to have been issued at the Effective Time. Promptly (and, in any event, within two Business Days) after the Effective Time, for all purposesParent shall send, or shall cause the Exchange Agent to send, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings any transfer or other Tax required as a result of such payment to a Person other than the registered each holder of such Certificate or establish to the reasonable satisfaction shares of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be returned to Holdings, upon demandeffected, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time risk of loss and title shall thereafter look pass, only to Holdings for upon proper delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion transfer of the Merger Consideration made available Uncertificated Shares to the Exchange Agent in respect accordance with the procedures set forth in the letter of any Dissenting Shares shall transmittal) for use in such exchange, such letter of transmittal and instructions to be returned to Holdings, upon demandin such form and have such other provisions as Parent and the Company may reasonably agree.
Appears in 1 contract
Sources: Merger Agreement (NTL Inc)
Surrender and Payment. (ai) At the Effective Time, all Shares outstanding immediately prior to before the Effective Time shall automatically be cancelled and retired and shall cease to exist, but the rights of the Shareholders to receive the Closing Merger Consideration and Earnout shall continue, and, subject to Section 2.91.8(f), either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or .
(ii) in the case of uncertificated shares, such holder Buyer shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act serve as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(ciii) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail The Representative will send to each holder of Target Company Common Stock Shares a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Closing Merger Consideration pursuant Consideration, such communication to Section 2.8(b)be sent via email or to the holder’s last known address on record with the Company. Holdings Buyer shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days business days after receipt of a Certificate, together with a Letter letter of Transmittal transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Buyer may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) cash amount set forth on the Funds Flow Memo with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. If the Buyer determines that there are any defects in the Certificate or any other documentation that may be required from a Shareholder prior to payment, then Buyer shall notify the Shareholder, within five (5) business days of receipt of the Certificate, of any issues and provide instruction on how to correct such defect(s). Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to before the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Closing Merger Consideration as provided in Section 2.8(b1.8(e). If after the Effective Time, any Certificate is presented to HoldingsBuyer, it shall be cancelled and exchanged as provided in this Section 2.101.8(g).
(div) Each Target Company Stockholder Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate from the Escrow Funds, the Contingency Escrow, or the Earnout, as provided in this Agreement, the Company’s Articles of Incorporation, as amended, and, where applicable, the Escrow Agreement and the Promissory Notesor in respect of any adjustment in accordance with Section 1.6, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders Shareholders on the Promissory Note Principal AmountClosing Merger Consideration.
(ev) If any portion of the Closing Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Representative 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 reasonable satisfaction of Holdings the Representative that such Tax has been paid or is not payable.
(fvi) Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days Shareholders 12 months after the Effective Time shall be returned to Holdings, upon demandthe Buyer by joint instructions of the Buyer and the Representative delivered to the Escrow Agent, and the Buyer shall hold the Representative harmless for any such Target Company Stockholder unclaimed funds. Any such Shareholder who has not exchanged Certificates for the Closing Merger Consideration in accordance with this Section 2.10 prior to 1.8(g) before that time shall thereafter look only to Holdings Buyer for delivery payment of the Closing Merger Consideration; provided, that any such portion of the Closing Merger Consideration payable from the - 15 - Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Earnout or the adjustment in accordance with Section 1.6 to which the Shareholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Buyer shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar LawsLegal Requirements. Any amounts remaining unclaimed by Target Company Stockholders Shareholders two years after the Effective Time (or such earlier date, immediately prior to before such time when the amounts would otherwise escheat to or become property of any Governmental Entitygovernmental authority) shall become, to the extent permitted by applicable LawLegal Requirement, the property of Holdings Buyer free and clear of any claims or interest of any Person previously entitled thereto, and the Shareholders shall look solely to the Buyer for any claims relating to such amounts.
(gvii) Any Buyer shall retain any portion of the Closing Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares and shall be returned hold the Representative harmless for such funds.
(viii) Buyer shall provide written notice to Holdingsthe Representative: (1) other than with respect to payments jointly authorized by the Buyer and the Representative, upon demandeach time Buyer makes a payment to a Shareholder under this Section 1.8(g), such notice to include the name of the Shareholder and the amount paid; (2) of any amount remaining unclaimed six (6) months and nine (9) months after the Effective Time.
Appears in 1 contract
Surrender and Payment. (a) At Prior to the Effective Time, Buyer shall appoint an agent (the "EXCHANGE AGENT") for the purpose of exchanging certificates representing Shares for the Merger Consideration. Buyer will make available to the Exchange Agent, in such amounts as may be needed from time to time, the Merger Consideration to be paid in respect of the Shares. Such funds shall be invested by the Exchange Agent as directed by the Buyer, provided that such investments shall be in obligations of or guaranteed by the United States of America or any agency thereof and backed by the full faith and credit of the United States of America, or in deposit accounts, certificates of deposit or banker's acceptances of, repurchase or reverse repurchase agreement with, or Eurodollar time deposits purchased from, commercial banks with capital, surplus and undivided profits aggregating in excess of $150 million (based on the most recent financial statements of such bank which are then publicly available). Promptly after the Effective Time, Buyer will send, or will cause the Exchange Agent to send, to each holder of Shares (other than the holders of Shares to be canceled as set forth in Section 1.02(a) or Dissenting Shares (as defined in Section 1.04)) at the Effective Time 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 representing Shares to the Exchange Agent).
(b) Each holder of Shares that have been converted into a right to receive the Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates representing such Shares, together with a properly completed and duly executed letter of transmittal covering such Shares, will be entitled to receive the Merger Consideration payable in respect of such Shares. From and after the Effective Time, all shares which have been so converted shall no longer be outstanding and shall automatically be canceled and retired and each such certificate shall, after the Effective Time, represent for all purposes, only the right to receive such Merger Consideration. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights with respect to such Shares except as a stockholder otherwise provided in this Agreement or by applicable law. All cash paid upon the surrender of certificates in accordance with the Target Company; or (ii) in the case terms of uncertificated shares, such holder this Section 1.03 shall cease be deemed to have any been paid in full satisfaction of all rights as a stockholder of pertaining to the Target Company without any further action.
(b) Holdings, Shares previously represented by such certificates. No interest shall accrue or a transfer agent appointed by Holdings, shall act as the exchange agent in be paid on the Merger (Consideration payable upon the “Exchange Agent”)surrender of any certificate.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered paid to a Person (as defined below) other than the Person registered holder of the Shares represented by the certificate or certificates surrendered in whose name the surrendered Certificate is registeredexchange therefor, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable. For purposes of this Agreement, "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.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Major Realty Corp)
Surrender and Payment. (a) At the Effective Time, all Shares Shares, Options and Warrants outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option or a Warrant shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions or Warrants.
(b) Holdings, or a transfer agent appointed by Holdings, Parent shall act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following Prior to receiving any portion of the date hereof and in any event not later than five (5) Business Days thereafterFinal Closing Merger Consideration, Holdings shall mail to each holder of Target Company Common Stock any issued and outstanding Shares of Series 2 Preferred (other than Dissenting Shares) immediately prior to the Effective Time, whether or not represented by a Certificate, shall have delivered to Parent (i) a properly completed and duly executed letter of transmittal in substantially the form attached hereto as Exhibit A F (a “Letter of Transmittal”) together with such other documents as may be reasonably requested pursuant to the instructions therein and (ii) the Certificates held of record by such Shareholder. On the date of this Agreement, after the execution of this Agreement, the Shareholder Representative shall mail to each holder of Shares of Series 2 Preferred a Letter of Transmittal and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of the Final Closing Merger Consideration pursuant to Section 2.8(b). Holdings Parent shall, no later than the later of (i) the Closing Date or (ii) five three (53) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Parent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. No interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Series 2 Preferred (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Final Closing Merger Consideration payable pursuant to Section 2.8(b) as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to HoldingsParent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Final Closing Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings Parent 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 reasonable satisfaction of Holdings Parent that such Tax has been paid or is not payable.
(fe) Any portion Until surrendered as contemplated by this Section 2.11(e), each Share of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after Series 2 Preferred shall be deemed as of the Effective Time shall be returned to Holdingsrepresent only the right to receive, upon demand, surrender of such Certificate and any delivery of a properly completed and duly executed Letter of Transmittal together with such Target Company Stockholder who has not exchanged Certificates for other documents as may be reasonably requested pursuant to the Merger Consideration instructions thereto in accordance with this Section 2.10 prior to that time 2.11, the consideration into which such Share shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official have been converted pursuant to applicable abandoned property, escheat or similar Laws. Section 2.8(b).
(f) Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, immediately prior to any holder of Series 2 Preferred at such time when the at which such amounts would otherwise escheat to or become property of any Governmental Entity) Authority pursuant to applicable Laws shall become, to the extent permitted by applicable LawLaws, the property of Holdings Parent, free and clear of any all Liens, claims or interest interests of any Person previously entitled thereto.
(g) Any portion . All cash paid upon conversion of Shares of Series 2 Preferred in accordance with the Merger Consideration made available to the Exchange Agent in respect terms of any Dissenting Shares this Article II shall be returned deemed to Holdings, upon demandhave been paid in full satisfaction of all rights pertaining to such Shares.
Appears in 1 contract
Sources: Merger Agreement (Realpage Inc)
Surrender and Payment. (a) At Prior to the mailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably satisfactory to the Company (the “EXCHANGE AGENT”) for the purpose of exchanging certificates representing Shares for, and distributing to holders of In-The-Money Options and the Warrant, the Merger Consideration. Parent shall, or shall cause Merger Sub to, make available to the Exchange Agent, as soon as reasonably practicable as of or after the Effective Time, all (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration issuable pursuant to Section 2.1(c) in exchange for outstanding Shares, pursuant to Section 2.4(a) in exchange for In-The-Money Options and pursuant to Section 2.4(b) in exchange for the Warrant, (ii) cash in an amount sufficient to make payments for fractional shares required pursuant to Section 2.2(c) and (iii) any dividends or distributions to which holders of certificates may be entitled pursuant to Section 2.2(d), which funds shall not be used by the Exchange Agent for any other purpose. Notwithstanding the second sentence of this Section 2.2(a), (x) the certificates representing the shares of Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the Exchange Agent but shall instead be deposited with the Escrow Agent (as defined in Section 2.5) and (y) the shares of Parent Common Stock comprising the Option Tax Shares outstanding (as defined in Section 2.6(b) shall not be deposited with the Exchange Agent but shall be deposited with the Designated Broker (as defined in Section 2.6(b)). For purposes of determining the aggregate Merger Consideration to be made available to the Exchange Agent, Parent shall assume that no holder of Shares will perfect appraisal rights with respect to such Shares. Promptly after the Effective Time, the Surviving Corporation will send, or will cause the Exchange Agent to send, to each holder of Shares immediately prior to the Effective Time a letter of transmittal for use in such exchange (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; or (ii) in certificates representing Shares to the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionExchange Agent).
(b) HoldingsEach holder of Shares that have been converted into a right to receive Merger Consideration, upon surrender to the Exchange Agent of a certificate or certificates formerly representing such Shares, together with a transfer agent appointed by Holdingsproperly completed letter of transmittal covering such Shares, shall act will be entitled to receive the aggregate Merger Consideration payable in respect of such Shares. Until so surrendered and except as otherwise set forth in Section 2.3, each such certificate shall, after the exchange agent in Effective Time, represent for all purposes, only the right to receive such Merger (the “Exchange Agent”)Consideration. No interest will be paid or will accrue on such Merger Consideration.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder No certificate or scrip representing fractional shares of Target Company Parent Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting shall be issued upon the surrender of Certificates certificates formerly representing Shares, or in exchange for In-The-Money Options or upon conversion of the applicable portion Warrant (as defined below), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of Merger Consideration pursuant to Section 2.8(b)a stockholder of Parent. Holdings shallNotwithstanding any other provision of this Agreement, no later than the later each holder of (i) Shares who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock pursuant to this Agreement (after taking into account all certificates formerly representing Shares delivered by such holder and the Closing Date or aggregate number of Shares represented thereby), (ii) five (5) Business Days after receipt In-The-Money Options who would otherwise have been entitled to receive a fraction of a Certificateshare of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of all In-The-Money Options held by such holder) or (iii) the Warrant, together with if such holder would otherwise have been entitled to receive a Letter fraction of Transmittal duly completed and validly executed a share of Parent Common Stock pursuant to this Agreement (after aggregating the number of Shares issuable upon exercise of the Warrant) shall receive, in accordance with lieu thereof, cash (without interest) in an amount equal to such fractional part of a share of Parent Common Stock multiplied by the instructions theretoclosing price of the Parent Common Stock on the NASDAQ National Market (“NASDAQ”) (or, and any other customary documents that Holdings may reasonably require in connection therewithif the Parent Common Stock shall have been approved for listing on another national stock exchange prior to such time, deliver such exchange) on the Closing Date, rounded down to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10nearest whole cent.
(d) Each Target Company Stockholder shall also be entitled No dividends or other distributions declared or made after the Effective Time with respect to any amounts that may be payable in Parent Common Stock with a record date after the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest Effective Time shall be paid to the holder of any unsurrendered certificate formerly representing Shares and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(c) until the holder of record of such certificate shall surrender such certificate. Subject to the effect of applicable laws, following surrender of any such certificate, there shall be issued and paid to the record holder of the certificate (i) at the time of surrender (A) certificates representing whole shares of Parent Common Stock issued in exchange therefor and (B) the amount of any cash payable in lieu of a fractional share of Parent Common Stock to which such holder is entitled pursuant to Section 2.2(c) and the amount of dividends or accrued for other distributions with a record date after the benefit Effective Time previously paid with respect to such whole shares of Target Company Stockholders on Parent Common Stock, without interest and (ii) at the Promissory Note Principal Amountappropriate payment date, the amount of dividends or other distributions having a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender that are payable with respect to such whole shares of Parent Common Stock.
(e) If any portion of the aggregate Merger Consideration payable with respect to a certificate or certificates formerly representing Shares is to be delivered paid to a Person (as defined below) other than the Person in whose name the surrendered Certificate is registeredregistered holder of such certificate or certificates, it shall be a condition to such delivery payment that (i) such Certificate the certificate or certificates so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, transfer and (ii) that the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax taxes required as a result of such payment to a Person other than the registered holder of such Certificate Shares or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax tax has been paid or is not payable. For purposes of this Agreement, “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.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Udate Com Inc)
Surrender and Payment. (a) At the Effective Time, all Shares Company Common Stock and all Warrants outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.7, either (i) each holder of a certificate formerly representing any Shares Company Common Stock (each, a “Certificate”) and each holder of record of a Warrant shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionWarrants.
(b) HoldingsPrior to the Effective Time, or a transfer Purchaser shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal in substantially the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.5(c). Holdings shall, no No later than the later of (i) the Closing Date or (ii) five subject to Section 2.12, two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent or Parent may reasonably require in connection therewith, deliver (1) the Exchange Agent shall pay to the holder such Stockholder a cash amount, and (2) Parent shall issue such number of such Certificate such holder’s portion shares of the Merger Consideration Parent Common Stock as provided in Section 2.8(b2.5(c) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on consideration payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.5(c). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.8.
(d) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, the Company shall mail to each Warrantholder a Warrant Termination Agreement substantially in the form attached as Exhibit B (a “Warrant Termination Agreement”) and instructions for completing, executing and returning such Warrant Termination Agreement in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.6(a). No later than the later of (i) the Closing Date or (ii) two (2) Business Days after receipt of a Warrant Termination Agreement duly completed and validly executed in accordance with the instructions thereto and any other customary documents that the Exchange Agent may reasonably require in connection therewith, (i) the Exchange Agent shall pay to such Warrantholder a cash amount, and (ii) the Parent shall issue such number of shares of Parent Common Stock as provided in Section 2.6(a) with respect to the In-Money Warrants in respect of which the Warrant Termination Agreement was delivered. Unless otherwise provided herein, no interest shall be paid or shall accrue on any Merger Consideration payable upon delivery of any Warrant Termination Agreement.
(e) Each Target Company Stockholder and Warrantholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares Company Common Stock formerly represented by such Certificate and the cancelled In-Money Warrants from the Holdback Amount as provided in this Agreement and on account of the Promissory NotesPost-Closing Adjustment, at the respective time and subject to the contingencies specified herein and thereinherein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders or Warrantholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any Each holder of a Certificate or In-Money Warrant who has not theretofore complied with the exchange procedures set forth in and contemplated by this Section 2.8 shall look only to Purchaser (subject to abandoned property, escheat and similar applicable Law) for its claim, only as a general unsecured creditor thereof, to any portion of the Merger Consideration that remains unclaimed by payable or issuable pursuant to this Agreement in respect of such Certificate or In-Money Warrant. Notwithstanding anything to the Target Company Stockholders ninety (90) days after contrary contained herein, if any Certificate or In-Money Warrant has not been surrendered prior to the earlier of the first anniversary of the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for date on which the applicable portion of the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official payable or issuable pursuant to applicable abandoned property, escheat this Agreement in respect of such Certificate or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts In-Money Warrant would otherwise escheat to to, or become the property of of, any Governmental Entity) shall becomeBody, any amounts payable in respect of such Certificate or In-Money Warrant shall, to the extent permitted by applicable Law, become the property of Holdings Purchaser, free and clear of any all claims or interest interests of any Person previously entitled thereto.
(gh) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsPurchaser, upon demand.
Appears in 1 contract
Surrender and Payment. (a) 1.8.1 At the Effective Time, all Shares and all Options outstanding immediately prior to the Effective Time shall automatically be cancelled canceled and retired and shall cease to exist, and, subject to Section 2.9, either (i) and each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of any Options shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated sharesOptions, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionapplicable.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) 1.8.2 As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Stockholder Representative shall mail deliver to each holder of Target Company TakeOut7 Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Closing Merger Consideration pursuant to Section 2.8(b)1.7.1. Holdings The Stockholder Representative shall, no later than the later of (ia) the Closing Date or and (iib) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver (or cause to be delivered) to the holder of such Certificate such holder’s the applicable portion of the Closing Merger Consideration as provided in pursuant to Section 2.8(b) 1.7.1 and the Proceeds Allocation Document with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledcanceled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any portion of the Closing Merger Consideration deliverable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) Shares shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Closing Merger Consideration as provided in Section 2.8(b)1.7.1 and the Proceeds Allocation Document. If after the Effective Time, any Certificate is presented to Holdingsthe Stockholder Representative, it shall be cancelled and exchanged as provided in this Section 2.101.8.2.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) 1.8.3 Any portion of the Closing Merger Consideration that remains unclaimed by the Target Company TakeOut7 Stockholders ninety two (902) days months after the Effective Time shall be returned to HoldingsGiftify, upon demand, and any such Target Company TakeOut7 Stockholder who has not exchanged Certificates for the Closing Merger Consideration in accordance with this Section 2.10 1.8.3 prior to that time shall thereafter look only to Holdings Giftify for delivery payment of the Closing Merger Consideration. Notwithstanding the foregoing, Holdings Giftify shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company TakeOut7 Stockholders 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings Giftify free and clear of any claims or interest of any Person previously entitled thereto.
(g) Any portion 1.8.4 Giftify shall pay, or cause the Surviving Corporation to pay, all charges and expenses, including those of the Stockholder Representative, in connection with the exchange of TakeOut7 Common Stock for the Closing Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demandConsideration.
Appears in 1 contract
Sources: Merger Agreement (Giftify, Inc.)
Surrender and Payment. (a) At Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing Shares (the “Certificates”) or (ii) uncertificated Shares (the “Uncertificated Shares”). Parent shall, at or prior to the Effective Time, deposit or cause to be deposited with the Exchange Agent cash sufficient to make all payments of the Merger Consideration payable in respect of the Certificates and the Uncertificated Shares outstanding in accordance with Section 2.02. The cash amount deposited with the Exchange Agent in accordance with this Section 2.03(a) shall not be used for any purpose other than as set forth in this Article 2. The Exchange Agent shall invest the cash amount deposited with the Exchange Agent in accordance with this Section 2.03(a) as directed by ▇▇▇▇▇▇ solely in (A) direct short-term obligations of the United States of America, (B) 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, (C) commercial paper rated P-1 or A-1 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Corporation, respectively, (D) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000, (E) money market funds having a rating in the highest investment category granted by a nationally recognized credit rating agency at the time of acquisition or (F) a combination of any of the foregoing, provided that, in any such case, no such instrument shall have a maturity exceeding three months. No investment or losses of any of the cash amounts deposited with the Exchange Agent in accordance with this Section 2.03(a) shall relieve Parent, the Surviving Corporation or the Exchange Agent from making the payments required by this Article 2 or affect the amount of Merger Consideration payable to holders of Shares, and to the extent that there are any losses with respect to any such investments, or the cash amount deposited with the Exchange Agent diminishes for any reason below the level required for the Exchange Agent to make prompt cash payment in accordance with Section 2.02, Parent shall promptly provide additional cash to the Exchange Agent so as to ensure that the Exchange Agent has at and after the Effective Time cash at a level sufficient for the Exchange Agent to make all payments in accordance with Section 2.02 that remain unpaid. Parent shall pay all charges and expenses of the Exchange Agent in connection with the exchange of Shares for the Merger Consideration. Promptly after the Effective Time (and in any event, not later than the fifth Business Day following the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of Shares as of immediately prior to the Effective Time a letter of transmittal and instructions in customary form (which shall automatically specify that the delivery shall be cancelled effected, and retired risk of loss and title shall cease to existpass, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder only upon proper delivery of the Target Company; Certificates or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder transfer of the Target Company without any further actionUncertificated Shares to the Exchange Agent) for use in such exchange.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as Each holder of Shares that have been converted into the exchange agent in right to receive the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafterConsideration shall be entitled to receive, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed 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 accordance with the instructions theretocase of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable for each such Share represented by such Certificate or for each such Uncertificated Share, and any other customary documents that Holdings may reasonably require in connection therewithupon the occurrence of (i) or (ii) (as applicable), Parent shall direct the Exchange Agent to issue and deliver to the holder relevant holder, by check or wire transfer (as specified in the letter of such Certificate such holder’s portion of transmittal), a cash amount equal the Merger Consideration as provided in Section 2.8(b) with respect to payable for each Share held by such Certificate so surrendered and the Certificate shall forthwith be cancelledholder. Until so surrenderedsurrendered or transferred, as the case may be, each outstanding such Certificate that prior to or Uncertificated Share shall represent after the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence purposes only the right to receive the portion of the Merger Consideration as provided in Section 2.8(b)Consideration. If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no No interest shall be paid or accrued for the benefit of Target Company Stockholders shall accrue on the Promissory Note Principal Amountcash payable upon surrender of any such ▇▇▇▇▇▇.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of Holdings the Exchange Agent and Parent that such Tax has been paid or is not payable.
(fd) 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.
(e) Any portion of the Merger Consideration deposited with the Exchange Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the Target Company Stockholders ninety (90) days holders of Shares that have been converted into the right to receive the Merger Consideration 12 months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates such Shares for the Merger Consideration in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger ConsiderationConsideration in respect of such Shares without any interest thereon and subject to any withholding of Taxes required by Applicable Law in accordance with this Section 2.03(e). Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates Shares for any amounts amount paid to a public official any Governmental Authority pursuant to applicable abandoned property, escheat or similar LawsApplicable Law. Any amounts remaining unclaimed by Target Company Stockholders 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, date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental EntityAuthority) shall become, to the extent permitted by applicable Applicable Law, the property of Holdings Parent free and clear of any claims or interest of any Person previously entitled thereto.
(gf) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting pursuant to Section 2.03(a) to pay for Shares for which appraisal rights have been perfected shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Campbell Soup Co)
Surrender and Payment. (a) At Prior to the Effective Time, all Shares outstanding immediately prior Parent shall appoint an agent reasonably acceptable to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”).
(c) As promptly as practicable . At or immediately following the date hereof Effective Time, Parent shall make available to the Exchange Agent the Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares; provided, that Parent shall not be required to make available to the Exchange Agent any Merger Consideration for Dissenting Shares or to the extent that the Company has made available any amounts in accordance with Section 8.03(i). Such funds may be invested by the Exchange Agent as directed by Parent; provided, that (i) no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any event such losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the stockholders 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 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. Promptly after the Effective Time (but not later than five three (53) Business Days thereafter), Holdings Parent shall mail send, or shall cause the Exchange Agent to send, to each holder of Target shares of Company Common Stock at the Effective Time a letter of transmittal in the form attached hereto as Exhibit 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 effecting such exchange.
(b) Until so surrendered or transferred, as the surrender of Certificates in exchange case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the applicable portion of right to receive such Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of upon (i) surrender to the Closing Date or (ii) five (5) Business Days after receipt Exchange Agent of a Certificate, together with a Letter properly completed letter of Transmittal duly completed and validly executed in accordance with transmittal, or (ii) receipt of an “agent’s message” by the instructions theretoExchange Agent (or such other evidence, and any other customary documents that Holdings if any, of transfer as the Exchange Agent may reasonably require request) in connection therewiththe case of a book-entry transfer of Uncertificated Shares, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly Company Stock represented by such a Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountUncertificated Share.
(ec) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such delivery payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fd) After the closing of business on the day on which the Effective Time occurs, there shall be no further registration of transfers of shares 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.
(e) Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03(a) (and any interest or other income earned thereon) that remains unclaimed by the Target holders of shares of Company Stockholders ninety Stock nine (909) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder holder who has not exchanged Certificates shares of Company Stock for the Merger Consideration in accordance with this Section 2.10 2.03 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration. Consideration in respect of such shares without any interest thereon.
(f) Notwithstanding the foregoing, Holdings none of Parent, Merger Subsidiary, the Company, the Surviving Corporation or the Exchange Agent shall not be liable to any holder of Certificates shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Lawslaws. Any amounts remaining unclaimed by Target Company Stockholders two If any Certificates shall not have been surrendered prior to four (4) years after the Effective Time (or such earlier date, immediately prior to such time when the amounts earlier date on which any Merger Consideration would otherwise escheat to or become the property of any Governmental Entity) shall becomeAuthority), any shares of Company Stock represented by such Certificates shall, to the extent permitted by applicable Applicable Law, become the property of Holdings Parent, free and clear of any all claims or interest of any Person previously entitled thereto.
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall designate PNC Bank, National Association or, if not PNC Bank, National Association, then a United States bank, trust company or other party reasonably acceptable to the Company, to act as payment agent (the “Paying Agent”) in the Merger.
(b) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As Prior to or as promptly as practicable following the date hereof and in any event not later than five two (52) Business Days thereafter, Holdings Paying Agent shall mail send to each holder of Target Company Common Stock a letter of transmittal in substantially the form attached hereto as Exhibit A B (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration Per-Share Cash-Out Amount that such holder is entitled to receive pursuant to Section 2.8(b2.08(b). Holdings Paying Agent shall, no later than the later of (i) three (3) Business Days after the Closing Date or (ii) five three (53) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, such documents that are required under Section 2.08(b), and any other customary documents that Holdings Paying Agent may reasonably require in connection therewith, deliver to the holder of such Certificate the Per-Share Cash-Out Amount that such holder’s portion Stockholder is entitled to receive pursuant to Section 2.08(b). No interest shall be paid or shall accrue on any cash payable upon surrender of the Merger Consideration as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelledany Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as Per-Share Cash-Out Amount provided for in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to HoldingsParent after the Effective Time, it shall be cancelled and exchanged as provided in this Section 2.102.11. Notwithstanding any other provision of this Agreement, the Parties acknowledge and agree that the Per-Share Cash-Out Amount payable to any Stockholder as contemplated in this Section 2.11 will be based upon the Estimated Purchase Price and that the payment of the Estimated Purchase Price at Closing as contemplated in Article III, subject to the post-Closing adjustments set out therein, shall satisfy the obligations of Parent and Merger Sub to make any payment of the Per-Share Cash-Out Amount at Closing.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject Notwithstanding anything herein to the contingencies specified herein and therein. Unless otherwise provided herein or in contrary, none of Parent, the Promissory Notes, no interest Surviving Corporation nor the Paying Agent shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates Stockholder for any amounts paid cash or other payment delivered to a public official Governmental Authority pursuant to applicable any abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five twenty (520) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal in the a form attached hereto as Exhibit A acceptable to Parent (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal (and including, an Option Cancellation Agreement, Warrant Cancellation Agreement, Note Cancellation Agreement and/or Restricted Stock Unit Cancellation Agreement, as applicable) duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion the number of the Merger Consideration shares of Parent Common Stock as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any consideration deliverable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target Company Stockholder shall also be entitled to any amounts consideration that may be payable deliverable in the future in respect of the Shares formerly represented by such Certificate from the Escrow Funds as provided in this Agreement and the Promissory NotesEscrow Agreement, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountMerger Consideration.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange Agent any transfer or other Tax required as a result of such payment delivery to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings Parent for delivery of the Merger Consideration; provided, that any such portion of the Merger Consideration deliverable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts shares of Parent Common Stock remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to HoldingsParent, upon demand.
Appears in 1 contract
Sources: Merger Agreement (Item 9 Labs Corp.)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.10, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, Holdings shall act as the exchange agent in the Merger (the “Exchange Agent”)) in the Merger.
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal in substantially the form attached hereto as Exhibit A C (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b). If a Letter of Transmittal is sent before Closing, such Letter of Transmittal from a holder of Certificates and the surrender of Certificates shall not be effective until the Closing. Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver to the holder of such Certificate such holder’s portion of the Merger Consideration Rollover Equity as provided in Section 2.8(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.102.11.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory NotesNote and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory NotesNote, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountMerger Consideration.
(e) If any portion of the Merger Consideration is to be paid or delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days three months after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 2.11 prior to that time shall thereafter look only to Holdings for delivery payment of the money Merger Consideration and to Holdings for the Rollover Equity; provided, that any such portion of the Merger ConsiderationConsideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Promissory Note, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
(h) For the avoidance of doubt, nothing in this Section 2.11 shall interfere with the Stockholders’ security interest in the shares of capital stock of the Surviving Corporation, as provided in Section 3 of the Promissory Note.
Appears in 1 contract
Sources: Merger Agreement (GigCapital2, Inc.)
Surrender and Payment. (a) At Promptly following the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.9, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) HoldingsSurviving LLC will deliver, or a transfer agent appointed by Holdingscause to be delivered, shall act as to Imperial the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafterClosing Date Free Delivery Instructions, Holdings shall mail to each holder of Target Company Common Stock a letter of transmittal substantially in the form attached hereto as Exhibit A C, together with any additional instructions and/or documents required by Imperial in connection with the Closing Date Free Delivery Instructions.
(b) Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), the Surviving LLC shall cause the Transfer Agent to send to each Unitholder that has not delivered a “properly completed Letter of Transmittal”) Transmittal a notice to the Unitholders, in form and substance reasonably acceptable to the Surviving LLC, and instructions for use in effecting the surrender exchange of Certificates in exchange such Units for the applicable portion of Merger Consideration pursuant to Section 2.8(b). Holdings shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with Section 2.03.
(c) Each Remaining Unitholder holding Units that have been converted into the instructions thereto, and any other customary documents that Holdings may reasonably require in connection therewith, deliver right to the holder of such Certificate such holder’s portion of receive the Merger Consideration as provided pursuant to and in accordance with Section 2.8(b) with respect 2.03 shall be entitled to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Until so surrenderedreceive, each outstanding Certificate that prior upon delivery to the Effective Time represented shares Transfer Agent of Target Company Common Stock (a properly completed Letter of Transmittal, the Merger Consideration in respect of such Units, subject to Section 2.06, and Purchaser shall, as promptly as practicable following the receipt by the Transfer Agent of such properly completed letter of transmittal, deliver, or cause to be delivered, to Imperial free delivery instructions and/or other than Dissenting Shares) shall be deemed from instructions or documents in respect of such Remaining Unitholder’s Merger Consideration, to the extent required in connection with the payment thereof. From and after the Effective Time, each Unit shall represent, for all purposes, to evidence only the right to receive the portion such Merger Consideration, and any holder of Units shall cease to have any rights with respect thereto except to receive the Merger Consideration as provided in Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and the Promissory Notes, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notes, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 EntitySections 2.03(b) shall become, to the extent permitted by applicable Law, the property of Holdings free and clear of any claims or interest of any Person previously entitled thereto2.03(c).
(g) Any portion of the Merger Consideration made available to the Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.08, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) and each holder of record of an Option (if any) shall cease to have any rights as a stockholder of the Target Company; Company or (ii) in the case a holder of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further actionOptions.
(b) HoldingsPrior to the Effective Time, or a transfer Parent shall appoint an exchange agent appointed by Holdings, shall reasonably acceptable to the Company (the “Exchange Agent”) to act as the exchange agent in the Merger (the “Exchange Agent”)Merger.
(c) As promptly as practicable following the date hereof appointment of the Exchange Agent and in any event not later than five (5) Business Days thereafter, Holdings the Exchange Agent shall mail to each holder of Target Company Common Stock a letter of transmittal in the form attached hereto as Exhibit A (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(b). Holdings The Exchange Agent shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Exchange Agent may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.08(b) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(b). If after the Effective Time, any Certificate is presented to Holdingsthe Exchange Agent, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) [Intentionally Omitted]
(e) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate from the Escrow Funds as provided in this Agreement and the Promissory NotesEscrow Agreement and on account of the Post-Closing Adjustment, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountMerger Consideration.
(ef) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Exchange 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 reasonable satisfaction of Holdings the Exchange Agent that such Tax has been paid or is not payable.
(fg) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days six months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that any such portion of the Merger Consideration payable from the Escrow Funds shall be held and distributed to the Persons entitled thereof in accordance with the terms of this Agreement and the Escrow Agreement, at the respective times and subject to the contingencies specified herein and therein and any portion of the Post-Closing Adjustment to which the Stockholders may become entitled shall become payable at the times and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares shares of Company Capital Stock outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.8, either (i) each holder of a certificate formerly representing any Shares share of Company Capital Stock (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in Company other than as provided herein. At the case Closing, all Options outstanding immediately prior to the Closing shall automatically be cancelled and shall cease to exist, and each holder of uncertificated shares, such holder record of an Option shall cease to have any rights as a stockholder holder of the Target Company without any further actionOptions other than as provided herein.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof Effective Time, and in any event not later than five three (53) Business Days thereafter, Holdings the Paying Agent shall (A) mail to each holder of Target Company Common Capital Stock that was converted pursuant to Section 2.6 into the right to receive applicable Merger Consideration a letter of transmittal in substantially the form attached hereto as Exhibit A D (a “Letter of Transmittal”) and instructions for use in effecting the surrender of Certificates (or delivery of an affidavit and agreement of indemnification, if any, as specified in Section 2.19) in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.8(b2.6, or (B) email to such holder instructions for either (I) completing the Letter of Transmittal over the internet by electronic means, including electronic signature, as instructed by the Paying Agent, including procedures for effecting the surrender of Certificates (or delivering such affidavit), or (II) requesting the Letter of Transmittal and such instructions to be mailed to such holder as provided in the immediately preceding clause (A). Holdings The Paying Agent shall, no later than the later of (i) the Business Day after the Closing Date or and (ii) five two (52) Business Days after receipt of a CertificateCertificate (or of an affidavit and agreement of indemnification, if any, as specified in Section 2.19), together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings may reasonably require the Paying Agent
(c) As promptly as practicable following the Agreement Date and in connection therewithany event not later than five (5) Business Days thereafter, deliver the Company shall provide to each holder of Options that are outstanding as of such date (A) an option termination agreement substantially in the form attached as Exhibit D (an “Option Termination Agreement”) and instructions for completing, executing and returning such Option Termination Agreement to the holder of such Certificate such holder’s Company in exchange for the applicable portion of the Merger Consideration as provided pursuant to Section 2.7, together with (B) any written notice required to be delivered in Section 2.8(b) connection with respect the transactions contemplated hereby to such Certificate so surrendered holder pursuant to the Stock Option Plan under which such Option was granted and (C) written notice that such holder will be entitled to his or her applicable share of the Certificate shall forthwith be cancelled. Until so surrendered, each Merger Consideration for any Options that are outstanding Certificate that immediately prior to the Effective Time represented shares Closing, but only if the holder delivers a duly executed and completed Option Termination Agreement to the Company. With respect to a holder of Target Exchanged Options, Parent shall, no later than the later of (i) the Closing Date and (ii) two (2) Business Days after receipt of an Option Termination Agreement duly completed and validly executed in accordance with the instructions thereto, cause the Company Common Stock (other than Dissenting Shares) shall be deemed from and after or the Effective Timepayroll service provider designated by the Company, for all purposesas the case may be, to evidence deliver to such holder of Exchanged Options the cash amount such holder has the right to receive the portion of the Merger Consideration as provided in pursuant to Section 2.8(b). If after the Effective Time, any Certificate is presented to Holdings, it shall be cancelled and exchanged as provided in this Section 2.102.7.
(d) Each Target Former Holder of Company Stockholder Capital Stock or Exchanged Options shall also be entitled to any amounts that may be payable in the future in respect of his, her or its shares of Company Capital Stock or Exchanged Options from the Shares formerly represented by such Certificate Adjustment Escrow Fund and from the Indemnification Escrow Fund as provided in this Agreement and the Promissory NotesEscrow Agreement, at the respective time times and subject to the contingencies terms and conditions specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target holders of Company Stockholders Capital Stock or Exchanged Options on the Promissory Note Principal Amount.
(e) If any portion of the Merger Consideration is to be delivered to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings 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 reasonable satisfaction of Holdings that such Tax has been paid or is not payable.
(f) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdings, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.7, either (i) each holder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder shareholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following the date hereof and in any event not later than five (5) Business Days thereafter, Holdings the Shareholders’ Representative shall mail to each holder of Target Company Common Stock a letter of transmittal in substantially the form attached hereto as Exhibit A (E ( a “Letter of Transmittal” and, together with the applicable Certificate, the “Transmittal Documents”) and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of the Merger Consideration pursuant to Section 2.8(b2.6(b). Holdings The Shareholders’ Representative shall, no later than the later of (i) the Closing Date or (ii) five (5) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings the Shareholders’ Representative (including at the reasonable request of Parent) may reasonably require in connection therewith, deliver pay to the holder of such Certificate such holder’s portion of the Merger Consideration a cash amount as provided in Section 2.8(b2.6(b)(i) with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock (other than Dissenting Shares described in Section 2.6(a) and Appraisal Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.6(b). If after the Effective Time, any Certificate is presented to Holdingsthe Shareholders’ Representative, it shall be cancelled and exchanged as provided in this Section 2.102.8. Any amounts to be paid by the Shareholders’ Representative to a Shareholder pursuant to this Section 2.8(b) shall be paid exclusively from the funds delivered to the Shareholders’ Representative by Parent pursuant to Section 3.2(b)(iii).
(dc) Each Target Company Stockholder Shareholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate from (i) the Indemnity Holdback Amount or the Representative Expense Amount, in each case as provided in this Agreement Agreement, and the Promissory Notes(ii) payment (if any) in accordance with Section 3.3(d)(ii)(A), at the respective time times and subject to the contingencies specified herein herein. The Shareholders’ Representative shall, subject to the prior receipt by the Shareholders’ Representative or Parent of a Certificate, together with a Letter of Transmittal duly completed and thereinvalidly executed in accordance with the instructions thereto, and any other customary documents that the Shareholders’ Representative (including at the reasonable request of Parent) may reasonably require in connection therewith, within five (5) Business Days after payment by Parent to the Shareholders’ Representative, for the benefit of the Shareholders (in accordance with their respective Pro Rata Shares and their respective percentages set forth in the Consideration Spreadsheet), of any amounts that become payable in the future in respect of the Shares formerly represented by such Certificate (A) from the Indemnity Holdback Amount or the Representative Expense Amount, in each case as provided in this Agreement, or (b) in accordance with Section 3.3(d)(ii)(A), pay to the prior holder of such Certificate a cash amount as provided in Section 2.6(b)(ii) with respect to such Certificate. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders Shareholders on the Promissory Note Principal AmountMerger Consideration.
(ed) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings the Shareholders’ Representative any transfer Transfer Tax 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 reasonable satisfaction of Holdings the Shareholders’ Representative that such Tax has been paid or is not payable.
(fe) Any portion of the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety Shareholders twelve (9012) days months after the Effective Time shall be returned to HoldingsParent, upon demand, and any such Target Company Stockholder Shareholder who has not exchanged Certificates Transmittal Documents for the Merger Consideration in accordance with this Section 2.10 2.8 prior to that time shall thereafter look only to Holdings Parent for delivery payment of the Merger Consideration; provided, that (i) any such portion of the Merger Consideration payable from the Indemnity Holdback Amount or the Representative Expense Amount, as applicable, shall be held and released, retained, and/or distributed, as applicable, by or to the Persons entitled thereto in accordance with the terms of this Agreement, at the respective times and subject to the contingencies specified herein and (ii) payment (if any) in accordance with Section 3.3(d)(ii)(A) to which the Shareholders may become entitled shall become payable at the time and subject to the contingencies specified herein. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 Entity) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
Appears in 1 contract
Sources: Merger Agreement (LIVE VENTURES Inc)
Surrender and Payment. (a) At the Effective Time, all Shares outstanding immediately prior to the Effective Time shall automatically be cancelled and retired and shall cease to exist, and, subject to Section 2.92.08(b), either (i) each holder Stockholder of a certificate formerly representing any Shares (each, a “Certificate”) shall cease to have any rights as a stockholder Stockholder of the Target Company; or (ii) in the case of uncertificated shares, such holder shall cease to have any rights as a stockholder of the Target Company without any further action.
(b) Holdings, On or a transfer agent appointed by Holdings, shall act as the exchange agent in the Merger (the “Exchange Agent”).
(c) As promptly as practicable following prior to the date hereof and in any event not later than five (5) Business Days thereafterhereof, Holdings shall mail to each holder of Target Company Common Stock has received a letter of transmittal transmittal, in form and substance reasonably satisfactory to Parent and the form attached hereto as Exhibit A Stockholder Representative (a “Letter of Transmittal”) ), and instructions for use in effecting the surrender of Certificates in exchange for the applicable portion of Merger Consideration pursuant to Section 2.8(b2.08(a)(ii). Holdings , that includes, among other things, (a) a customary release in form reasonably satisfactory to Parent and the Stockholder Representative from the respective Stockholders in favor of the Parent, Merger Subs, the Stockholder Representative, and the Company, its predecessors, successors (including the First Step Surviving Corporation and the Final Surviving Company), Subsidiaries and other Affiliates, and all of its current and former officers, directors, employees, agents, and representatives, (b) a confirmation of the appointment of Stockholder Representative as the initial Stockholder Representative, (c) an agreement to be bound by the provisions of Article VII and Article IX, and (d) an accredited investor questionnaire (including investment representations) from the respective Stockholders in form reasonably satisfactory to Parent.
(c) Parent shall, no later than the later of (i) the Closing Date or (ii) five two (52) Business Days after receipt of a Certificate, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and any other customary documents that Holdings Parent may reasonably require in connection therewith, (i) deliver a letter to Parent’s transfer agent directing it to deliver to the Stockholder Representative, on behalf of the holder of such Certificate Certificate, one (1) or more certificates representing, in the aggregate, the whole number of Parent Shares that such holder’s portion holder has the right to receive pursuant to Section 2.08(a)(ii) and (ii) deliver to the Stockholder Representative, on behalf of the Merger Consideration holder of such Certificate, a cash amount as provided in Section 2.8(b) 2.08(a)(ii), with respect to such Certificate so surrendered and the Certificate shall forthwith be cancelled. Unless otherwise provided herein, no interest shall be paid or shall accrue on any cash payable upon surrender of any Certificate. Until so surrendered, each outstanding Certificate that prior to the Effective Time represented shares of Target Company Common Stock Shares (other than Dissenting Shares) shall be deemed from and after the Effective Time, for all purposes, to evidence the right to receive the portion of the Merger Consideration as provided in Section 2.8(b2.08(a)(ii). If after the Effective Time, any Certificate is presented to HoldingsParent, it shall be cancelled and exchanged as provided in this Section 2.10.
(d) Each Target Company Stockholder shall also be entitled to any amounts that may be payable in the future in respect of the Shares formerly represented by such Certificate as provided in this Agreement and from the Promissory NotesEarn-Out Consideration, at the respective time and subject to the contingencies specified herein and therein. Unless otherwise provided herein or in the Promissory Notesherein, no interest shall be paid or accrued for the benefit of Target Company Stockholders on the Promissory Note Principal AmountMerger Consideration.
(e) If any portion of the Merger Consideration is to be delivered paid to a Person other than the Person in whose name the surrendered Certificate is registered, it shall be a condition to such delivery payment that (i) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, and (ii) the Person requesting such payment or delivery shall pay to Holdings Parent 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 reasonable satisfaction of Holdings Parent that such Tax has been paid or is not payable.
(f) Any portion of Notwithstanding anything to the Merger Consideration that remains unclaimed by the Target Company Stockholders ninety (90) days after the Effective Time shall be returned to Holdingscontrary in this Agreement, upon demand, and any such Target Company Stockholder who has not exchanged Certificates for the Merger Consideration in accordance with this Section 2.10 prior to that time shall thereafter look only to Holdings for delivery of the Merger Consideration. Notwithstanding the foregoing, Holdings Parent shall not be liable to any holder of Certificates for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by Target Company Stockholders 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 EntityAuthority) shall become, to the extent permitted by applicable Law, the property of Holdings 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 Exchange Agent in respect of any Dissenting Shares shall be returned to Holdings, upon demand.
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