Payment Fund. Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the “Paying Agent”). The Paying Agent shall also act as the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented thereby. At or immediately after the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent cash in immediately available funds in an amount sufficient to pay the aggregate Merger Consideration (the “Payment Fund”), in each case, for the sole benefit of the holders of Company Common Stock; provided that no such deposits shall be required to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of payment of the Merger Consideration in accordance with this Agreement) to pay the aggregate Merger Consideration, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the shortfall that is required to make such payment. Parent shall cause the Paying Agent to make, and the Paying Agent shall make, delivery of the Merger Consideration out of the Payment Fund in accordance with this Agreement. The Payment Fund shall not be used for any purpose that is not expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment of the Payment Fund shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated P-1 or A-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion (based on the most recent financial statements of such bank that are then publicly available), and that no such investment or loss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article III. Any interest and other income resulting from such investments shall be paid to Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Ca, Inc.)
Payment Fund. Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the “Paying Agent”). The Paying Agent shall also act as the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented thereby. At or immediately Immediately after the Effective Time, Parent the Surviving Corporation shall deposit, deposit or cause to be deposited, deposited in trust with the Paying Agent cash in immediately available funds in an amount sufficient United States dollars necessary to pay make the aggregate Merger Consideration payments contemplated by Section 2.5(a) to the holders of Shares other than Excluded Shares (the “Payment Fund”), in each case, for the sole benefit of the holders of Company Common Stock; provided that no such deposits shall be required to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of payment of the Merger Consideration in accordance with this Agreement) to pay the aggregate Merger Consideration, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the shortfall that is required to make such payment. Parent shall cause the Paying Agent to make, and the Paying Agent shall make, delivery of the Merger Consideration out of the Payment Fund in accordance with this Agreement. The Payment Fund shall not be used for any purpose that is not expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment the Surviving Corporation (i) in direct obligations of the Payment Fund shall in all events be limited United States, obligations for which the full faith and credit of the United States is pledged to direct short-term obligations of, or short-term obligations fully guaranteed as to provide for the payment of principal and interest byinterest, the U.S. government, in commercial paper of an issuer organized under the laws of a state of the United States rated P-1 or A-1 or better of the highest quality by Xxxxx’x Mxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectivelyRatings Group, or in certificates of deposit, bank repurchase agreements or banker’s bankers’ acceptances of a United States commercial banks with capital exceeding bank having at least $50 billion 1,000,000,000 in assets (based on the most recent financial statements of such bank that collectively, “Permitted Investments”) or (ii) in money market funds which are then publicly available)invested in Permitted Investments, and any net earnings with respect thereto shall be paid to the Surviving Corporation as and when requested by the Surviving Corporation. The Payment Fund shall not be used for any purpose other than making the payments contemplated by Section 2.5(a) and Section 2.6(a). Promptly following the date which is one year after the Effective Time, the Paying Agent shall return to the Surviving Corporation all cash, certificates and other instruments in its possession that no constitute any portion of the Payment Fund, and the Paying Agent’s duties shall terminate. Thereafter, each holder of a Certificate may surrender such investment or loss thereon shall affect Certificate to the amounts payable Surviving Corporation and (subject to holders of Certificates or Book-Entry Shares applicable abandoned property, escheat and similar laws) receive in exchange therefor the aggregate Merger Consideration deliverable in respect thereof pursuant to this Article IIIII, without interest, but shall have no greater rights against the Surviving Corporation than may be accorded to general creditors of the Surviving Corporation under applicable law. Any interest and other income resulting from such investments Notwithstanding the foregoing, neither the Paying Agent nor any party hereto shall be paid liable to Parenta holder of Shares for any Merger Consideration with respect to such Shares delivered to a public official pursuant to applicable abandoned property, escheat and similar laws.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ipayment Inc), Agreement and Plan of Merger (Ipayment Inc)
Payment Fund. Prior to the Effective Time, Parent shall designate a bank or trust company reasonably acceptable to the Company BNY Mellon National Association (“BNY Mellon”) to act as exchange agent for the paying agent benefit of the stockholders of the Company and the holders of Participation Rights in connection with the Merger (the “Paying Agent”). The Paying Agent shall also act as the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented thereby. At or immediately after Immediately prior to the Effective Time, (i) Parent shall deposit, deposit or shall cause to be deposited, with the Paying Agent cash in immediately available deposited sufficient funds in an amount sufficient to pay the aggregate Adjusted Closing Merger Consideration Consideration, and (ii) the Company shall deposit or shall cause to be deposited an amount equal to the Estimated Closing Cash, in each case with the Agent in the same separate account established for the benefit of the holders of Shares, (such deposits in clauses (i) and (ii), together with any funds added thereto pursuant to Section 2.10(d), Section 2.11(a) or Article IX, the “Payment Fund”), in each case, for . The parties acknowledge and agree that the sole benefit Company’s deposit of the holders of Company Common Stock; provided that no such deposits Estimated Closing Cash amount with the Agent shall be required deemed for all purposes hereunder, effective as of the Closing, to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of constitute partial payment of the Closing Merger Consideration in accordance with this Agreement) by Parent. The Agent shall, pursuant to irrevocable instructions, pay the aggregate Merger Consideration, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal to the shortfall that is required to make such payment. Parent shall cause the Paying Agent to make, and the Paying Agent shall make, delivery all of the Merger Consideration out of the Payment Fund, when and if payable pursuant to the terms of this Agreement. The Agent shall invest the Payment Fund as directed by Parent on a daily basis in accordance (i) short term direct obligations of the United States of America with maturities of no more than thirty (30) days, (ii) short term obligations for which the full faith and credit of the United States of America is pledged to provide for payment of all principal and interest or (iii) commercial paper obligations receiving the highest rating from either Xxxxx’x Investor Services, Inc. or Standard & Poor’s; provided, that no gain or loss thereon shall affect the amounts payable to former holders of Shares pursuant to the provisions of this Article II. Any interest and other income resulting from such investments shall promptly be paid to the Surviving Corporation. Nothing in this Section 2.4 shall limit the ability of the Agent to make any required Tax withholdings permitted by Section 2.9 or to limit the Surviving Corporation’s ability to make any such required Tax withholdings after any funds remaining in the Payment Fund have been returned to the Surviving Corporation pursuant to this Agreement. The Payment Fund shall not be used for any purpose that is not except as expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment of the Payment Fund shall in all events be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government, in commercial paper rated P-1 or A-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $50 billion (based on the most recent financial statements of such bank that are then publicly available), and that no such investment or loss thereon shall affect the amounts payable to holders of Certificates or Book-Entry Shares pursuant to this Article III. Any interest and other income resulting from such investments shall be paid to Parent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cornerstone Therapeutics Inc)
Payment Fund. Prior to the Effective Time, Parent Purchaser shall designate a bank or trust company reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the “Paying "Agent”"). The Paying All fees and expenses of the Agent shall also act as be borne by the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented therebySurviving Corporation. At or immediately after Immediately prior to the Effective Time, Parent Purchaser shall deposit, deposit or shall cause to be deposited, deposited with the Paying Agent cash in immediately available funds in an amount sufficient to pay the aggregate Merger Consideration (the “Payment Fund”), in each case, a separate fund established for the sole benefit of the holders of Company Common Stock; provided that no such deposits shall be required Shares, an amount equal to those amounts to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of payment of the Merger Consideration paid in accordance with this Agreement) to pay the aggregate Merger Consideration, Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount that is equal Article II (other than payments to the shortfall that is required Company, any subsidiary of the Company, Purchaser, Merger Sub or any other subsidiary of Purchaser) less any Loan Reduction Amounts (the "Payment Fund"), in immediately available funds. The Agent shall, pursuant to make such payment. Parent shall cause the Paying Agent to makeirrevocable instructions, and the Paying Agent shall make, delivery of pay the Merger Consideration out of the Payment Fund in accordance with this AgreementFund. The Payment Fund Agent shall not be used for any purpose that is not expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment invest portions of the Payment Fund shall as Purchaser directs in all events be limited to direct short-term obligations of, of or short-term obligations fully guaranteed as to principal and interest by, by the U.S. governmentUnited States of America, in commercial paper rated P-1 or A-1 or better by Xxxxx’x obligations receiving the highest investment grade rating from both Xxxxx'x Investors ServiceServices, Inc. or and Standard & Poor’s 's Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s 's acceptances of commercial banks with capital exceeding $50 billion 1,000,000,000 (based on collectively, "Permitted Investments"); provided, however, that the most recent financial statements maturities of Permitted Investments shall be such bank that are then publicly available), and that no such investment or loss thereon shall affect as to permit the amounts payable Agent to make prompt payment to former holders of Certificates or Book-Entry Shares pursuant to entitled thereto as contemplated by this Article IIIII. Any interest and other income resulting from such investments Purchaser shall cause the Payment Fund to be promptly replenished to the extent of any losses incurred as a result of Permitted Investments. All earnings of Permitted Investments shall be paid to ParentPurchaser. If, for any reason (including losses incurred as a result of Permitted Investments), the Payment Fund is inadequate to pay the amounts to which holders of Shares shall be entitled under this Article II, Purchaser shall in any event be liable for payment thereof. The Payment Fund shall not be used for any purpose except as expressly provided in this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Barringer Technologies Inc)
Payment Fund. Prior Immediately prior to the Effective Time, Parent the Purchaser shall designate a bank deposit or trust company reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the “Paying Agent”). The Paying Agent shall also act as the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented thereby. At or immediately after the Effective Time, Parent shall deposit, or cause to be deposited, deposited with the Paying Disbursing Agent cash (as defined in immediately available funds Section 2.3 hereof) in an amount sufficient to pay the aggregate Merger Consideration (the “Payment Fund”), in each case, a separate fund established for the sole benefit of the holders of Company Common Stock; provided that no such deposits shall be required to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of , for payment of the Merger Consideration in accordance with this Agreement) Article 2 through the Disbursing Agent (the "Payment Fund"), immediately available funds in amounts necessary to pay make the aggregate payments pursuant to this Article 2 to holders of Shares (other than the Company, the Purchaser, Merger ConsiderationSub or any other subsidiary of the Purchaser). The Disbursing Agent shall, Parent shall promptly deposit, or cause pursuant to be deposited, additional funds with the Paying Agent in an amount that is equal irrevocable instructions delivered prior to the shortfall that is required to make such payment. Parent shall cause the Paying Agent to makeEffective Time, and the Paying Agent shall make, delivery of pay the Merger Consideration out of the Payment Fund in accordance with this AgreementFund. The Payment Fund Disbursing Agent shall not be used for any purpose that is not expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment invest portions of the Payment Fund shall as the Purchaser directs in all events be limited to direct short-term obligations of, of or short-term obligations fully guaranteed as to principal and interest by, by the U.S. governmentUnited States of America, in commercial paper rated P-1 or A-1 or better by Xxxxx’x obligations receiving the highest investment grade rating from both Xxxxx'x Investors Service, Inc. or and Standard & Poor’s Corporation's Ratings Services, respectivelya Division of The XxXxxx-Xxxx Companies, or in certificates of deposit, bank repurchase agreements or banker’s 's acceptances of commercial banks with capital exceeding $50 billion 1,000,000,000 (based on collectively, "Permitted Investments"); provided, however, that the most recent financial statements maturities of Permitted Investments shall be such bank that are then publicly available), and that no such investment or loss thereon shall affect as to permit the amounts payable Disbursing Agent to make prompt payment to former holders of Certificates or Book-Entry Shares pursuant to entitled thereto as contemplated by this Article III2. Any interest and other income resulting from such investments The Purchaser shall cause the Payment Fund to be promptly replenished to the extent of any losses incurred as a result of Permitted Investments. All earnings of Permitted Investments shall be paid to Parentthe Purchaser. If, for any reason (including losses incurred as a result of Permitted Investments), the Payment Fund is inadequate to pay the amounts to which holders of Shares shall be entitled under this Article 2, the Purchaser shall in any event be liable for payment thereof. The Payment Fund shall not be used for any purpose except as expressly provided in this Merger Agreement.
Appears in 1 contract
Payment Fund. Prior to Concurrently with the Effective Time, Parent the Purchaser shall designate a bank deposit or trust company reasonably acceptable to the Company to act as the paying agent in connection with the Merger (the “Paying Agent”). The Paying Agent shall also act as the agent for the Company Stockholders for the purpose of receiving and holding their Certificates and Book-Entry Shares and shall obtain no rights or interests in the shares represented thereby. At or immediately after the Effective Time, Parent shall deposit, or cause to be deposited, deposited with the Paying Disbursing Agent cash (as defined in immediately available funds Section 2.8) in an amount sufficient to pay the aggregate Merger Consideration (the “Payment Fund”), in each case, a separate fund established for the sole benefit of the holders of Company Common Stock; provided that no such deposits shall be required to be made with respect to any Dissenting Shares. In the event the Payment Fund shall be insufficient (other than as a result of , for payment of the Merger Consideration in accordance with this Agreement) to pay Section 2, through the aggregate Merger ConsiderationDisbursing Agent (the "Payment Fund"), Parent shall promptly deposit, or cause to be deposited, additional immediately available funds with the Paying Agent in an amount that is equal to the shortfall that is required amounts necessary to make such paymentthe payments pursuant to this Section 2 to holders of Shares (other than the Company, any subsidiary of the Company, the Purchaser, Merger Sub or any other subsidiary of the Purchaser or holders of Dissenting Shares). Parent shall cause the Paying The Disbursing Agent shall, pursuant to makeirrevocable instructions, and the Paying Agent shall make, delivery of pay the Merger Consideration out of the Payment Fund in accordance with this AgreementFund. From time to time at or after the Effective Time, the Purchaser shall take or cause to be taken all lawful action necessary to permit the Surviving Corporation to make the appropriate cash payments, if any, to holders of Dissenting Shares. The Payment Fund Disbursing Agent shall not be used for any purpose that is not expressly provided for in this Agreement. The Payment Fund shall be invested by the Paying Agent as reasonably directed by Parent; provided, however, that any investment invest portions of the Payment Fund shall as the Purchaser directs in all events be limited to direct short-term obligations of, of or short-term obligations fully guaranteed as to principal and interest by, by the U.S. governmentUnited States of America, in commercial paper rated P-1 or A-1 or better by Xxxxx’x Investors Serviceobligations receiving the highest investment grade rating from both Moodx'x Xxxestors Services, Inc. or and Standard & Poor’s 's Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s 's acceptances of commercial banks with capital exceeding $50 billion 1,000,000,000 (based on collectively, "Permitted Investments"); provided, however, that the most recent financial statements maturities of Permitted Investments shall be such bank that are then publicly available), and that no such investment or loss thereon shall affect as to permit the amounts payable Disbursing Agent to make prompt payment to former holders of Certificates or Book-Entry Shares pursuant entitled thereto as contemplated by this Section. The Purchaser shall cause the Payment Fund to this Article IIIbe promptly replenished to the extent of any losses incurred as a result of Permitted Investments. Any interest and other income resulting from such investments All earnings of Permitted Investments shall be paid to Parent.the Purchaser. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of Shares shall be entitled under Section 2, the Purchaser shall in any event be liable for payment thereof. The Payment Fund shall not be used for any purpose except as expressly provided in this Merger Agreement. Six months after the Effective Date, all portions of the Payment Fund not theretofore paid to former holders of Shares shall be remitted to the Surviving Corporation and former holders of Shares shall thereafter look solely to the Surviving Corporation for payment of the Merger Consideration. 2.8
Appears in 1 contract
