Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Rennes Fondation), Agreement and Plan of Merger (Ebix Inc), Agreement and Plan of Merger (Ebix Inc)
Surrender and Payment. (a) Prior to the First Effective Time, Parent and Bidco shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing payable in respect of the shares of Company Stock Common Stock. As of the First Effective Time, in consideration of and in exchange for the issuance to Parent by Bidco of 1,900 shares of common stock of Bidco and the Cancellation, Parent shall allot Parent Ordinary Shares which may be represented in uncertificated form in CREST or American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the “Certificates”Parent ADSs issuable pursuant to Section 2.03(a). As of the First Effective Time, Parent (in the case of (x)) and Parent or Bidco (iiin the case of (y)) uncertificated shall deposit or cause to be deposited with the Exchange Agent, for the benefit of the holders of shares of Company Common Stock, for exchange in accordance with this Section 2.05 through the Exchange Agent, (x) American depositary receipts evidencing (or evidence of Parent ADSs in book-entry form representing) the Parent ADSs issuable pursuant to Section 2.03(a) in exchange for outstanding shares of Company Common Stock and (y) cash sufficient to pay the “Uncertificated Shares”aggregate Cash Consideration payable pursuant to Section 2.03(a). Parent agrees to make available, directly or indirectly, to the Exchange Agent from time to time as needed additional cash sufficient to pay any dividends or other distributions to which such holders are entitled pursuant to Section 2.05(f) and cash in lieu of any fractional Parent ADSs to which such holder is entitled pursuant to Section 2.09. Promptly after the First Effective Time, Parent shall deposit Time (and in cash with no event more than two Business Days following the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”Closing Date). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the First Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the First Effective Time and which shall specify that the (A) delivery shall be effected, and risk of loss and title shall pass, only upon on proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangeexchange and (B) each holder of shares of Company Common Stock may elect to receive a number of Parent Ordinary Shares in lieu of Parent ADSs as Share Consideration pursuant to Section 2.05(g). All certificates (or evidence of Parent ADSs in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund”. Parent shall cause, or shall procure that Bidco cause, the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent or Bidco; provided, that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests and, to the extent necessary to pay the Merger Consideration, Parent shall promptly cause, or shall procure that Bidco cause, to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent on termination of the Exchange Fund.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Astrazeneca PLC), Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.), Agreement and Plan of Merger (Alexion Pharmaceuticals, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing payable in respect of the shares of Company Stock (the “Certificates”) or (ii) uncertificated shares Common Stock. As of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, evidence of shares in book-entry form representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(aSection 2.03(i) (collectivelyin exchange for outstanding shares of Company Common Stock. Parent agrees to make available, the “Aggregate Merger Consideration”). For the avoidance of doubtdirectly or indirectly, such amounts on deposit with to the Exchange Agent shall not be used for from time to time as needed additional cash sufficient to pay any purpose dividends or other than distributions to fund payments due which such holders are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement Section 2.04(f) and cash in lieu of any fractional share of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holder is entitled pursuant to Parent or as Parent otherwise directsSection 2.07. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) Agent for use in such exchange. All evidence of shares in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article 2 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Common Stock are entitled pursuant to Section 2.04(f) or cash in lieu of fractional interests to which holders of Company Common Stock are entitled pursuant to Section 2.07. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Schwab Charles Corp), Agreement and Plan of Merger (Td Ameritrade Holding Corp), Voting and Support Agreement
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Shares. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, 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 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 90 days or guaranteed by the United States of America, 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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares record of Company Stock Certificates or Uncertificated Shares at the Effective Time Time, other than shares described in Section 2.02(b) or Section 2.02(c), 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 such exchange.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hanesbrands Inc.), Agreement and Plan of Merger (Maidenform Brands, Inc.)
Surrender and Payment. (a) 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 of Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with and make available to the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares (but not any Merger Consideration in respect of Company Stock entitled to payment pursuant to Section 2.02(a) (collectivelyany Dissenting Shares as of the Effective Time or, the “Aggregate Merger Consideration”). For for the avoidance of doubt, such amounts on deposit the Company Option Merger Consideration or the Company RSU Merger Consideration) (the “Exchange Fund”). All cash deposited with the Exchange Agent shall not only be used for any purpose other than to fund payments due pursuant to Section 2.02(a)the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. The Aggregate Merger Consideration deposited with Any income from investment of the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent Fund will be payable to Parent or as Parent otherwise directsthe Surviving Corporation. Promptly after the Effective Time (but in no event later than five (5) Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary, any Subsidiary of the Company or Parent, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal) a letter of transmittal transmittal, in form and substance reasonably acceptable to the Surviving Corporation, 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 such exchange.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SolarWinds, Inc.), Agreement and Plan of Merger (SolarWinds, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a bank or trust company reasonably acceptable to the Company to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose of receiving and exchanging the payment of Merger Consideration for the Merger Consideration (i) benefit of the Company stockholders upon surrender of certificates representing shares the Shares. The Disbursing Agent shall also act as the agent for the Company stockholders for the purpose of Company Stock (holding the “Certificates”) certificates representing the Shares and shall obtain no rights or (ii) uncertificated shares of Company Stock (interests in the “Uncertificated Shares”Shares represented by such certificates. Parent will enter into a disbursing agent agreement with the Disbursing Agent, and at such times, and from time to time, as the Disbursing Agent requires funds to make the payments pursuant to Section 3.6(b). Promptly after the Effective Time, Parent shall deposit in cash or cause to be deposited with the Exchange Disbursing Agent cash in an aggregate amount necessary to make the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment payments pursuant to Section 2.02(a3.6(b) to holders of Shares (collectively, such amounts being hereinafter referred to as the “Aggregate Merger ConsiderationExchange Fund”). For purposes of determining the avoidance aggregate amount to be so deposited, Parent and Merger Subsidiary shall assume that no stockholders of doubtthe Company will perfect any right to appraisal of his, such amounts on deposit with her or its Shares. The Disbursing Agent shall invest the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent Fund as directed by Parent; provided that such investments shall be in (i) direct obligations of or guaranteed by the United States of America, in (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, (iii) commercial paper obligations rated A-1 or P-1 or better the highest quality by either Xxxxx’x Investors ServiceServices, Inc. or Standard & Poor’s respectively, Corporation or in money market funds having (iv) a rating in the highest investment granted by a recognized credit rating agency at the time combination of any of the investmentforegoing; provided further that no loss thereon or thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.6(b). Any net profit interest and other income resulting from, or interest or income produced by, from such amounts on deposit with investment shall become a part of the Exchange Agent will Fund, and any amounts in excess of the amounts payable under Section 3.6(b) shall be payable promptly paid to Parent or as Parent otherwise directsParent. Promptly after the Effective TimeIf for any reason (including losses) such funds are inadequate to pay all amounts to which holders of Shares shall be entitled hereunder, Parent shall sendpromptly deposit or cause to be deposited additional cash with the Disbursing Agent sufficient to make all payments required under this Agreement, or and Parent and the Merger Subsidiary shall cause in any event be liable for payment thereof. The Exchange Fund shall not be used for any other purpose. Parent shall bear and pay all charges and expenses, including those of the Disbursing Agent, incurred in connection with the exchange of Shares and the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangeFund.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eos Petro, Inc.), Agreement and Plan of Merger (Dune Energy Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent Purchaser shall appoint an as agent (the "EXCHANGE AGENT") a commercial bank or trust company, reasonably acceptable to the Company (the “Exchange Agent”) and having at least $50,000,000 in capital, surplus and undivided profits, for the purpose of exchanging certificates which immediately prior to the Effective Time represented Shares ("CERTIFICATES") for the Merger Consideration (i) certificates representing shares which holders of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”)Certificates are entitled to receive pursuant to this Article III. Promptly after Immediately prior to the Effective Time, Parent Purchaser shall deposit in cash trust with the Exchange Agent cash in an aggregate amount equal to the product of (i) the number of Shares outstanding immediately prior to the Effective Time (other than the Shares owned by Purchaser or the Company and any direct or indirect Subsidiary of the Company, and Shares as to which appraisal rights have been demanded) and (ii) the Merger Consideration (such amount being hereinafter referred to be paid in respect of all of as the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a"PAYMENT FUND"). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, Payment Fund shall be invested by the Exchange Agent as directed by Parent; provided that Purchaser (so long as such investments shall be directions do not impair the rights of the holders of Shares) in direct obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in for which the highest investment granted by a recognized full faith and credit rating agency at the time of the investmentUnited States of America is pledged to provide for the payment of principal and interest, and any net earnings with respect thereto shall be paid to Purchaser as and when requested by Purchaser. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the The Exchange Agent will shall, pursuant to irrevocable instructions, make the payments referred to in Section 3.2(b) out of the Payment Fund. The Payment Fund shall not be payable to Parent or used for any other purpose except as Parent otherwise directsprovided herein. Promptly after the Effective Time, Parent shall Purchaser will send, or shall will cause the Exchange Agent to send, to each holder of shares record of Company Stock at the Effective Time a Certificate or Certificates, other than holders of Certificates which represent Shares canceled and retired pursuant to Section 3.1(b) hereof, (i) a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title with respect to the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) and (ii) instructions for use in such exchangeeffecting the surrender of Certificates for payment therefore (the "EXCHANGE INSTRUCTIONS").
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Seracare Inc), Agreement and Plan of Merger (Grupo Grifols Sa)
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent the Surviving Corporation shall deposit in cash with the Exchange Agent the Merger Consideration cause to be paid in respect mailed to each record holder, as of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of certificates representing outstanding shares of Company Common Stock at the Effective Time (“Company Certificates”) or shares of Company Common Stock represented by book-entry (“Company Book-Entry Shares”) (other than such holders who properly made a Cash Election, Stock Election or Combination Election with respect to such Company Certificates or Company Book-Entry Shares in accordance with Section 3.1 and other than Dissenting Shares), a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title to the Company Certificates shall pass, only upon proper delivery of the Company Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent or, in the case of Company Book-Entry Shares, upon adherence to the procedures set forth in the letter of transmittal) and instructions for use in effecting the surrender of the Company Certificates or, in the case of Company Book-Entry Shares, the surrender of such exchangeshares for payment of the Merger Consideration therefor. After the Effective Time, upon surrender in accordance with this Section 3.4(a) or in connection with a Form of Election delivered pursuant to Section 3.1(d), to the Exchange Agent of a Company Certificate or Company Book-Entry Shares, together with such letter of transmittal or a Form of Election pursuant to Section 3.1(d), duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the Exchange Agent shall promptly deliver to the holder of such Company Certificate or Company Book-Entry Shares in exchange therefor, the Merger Consideration to be received by the holder thereof pursuant to this Agreement. The Exchange Agent shall accept such Company Certificates or Company Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. After the Effective Time, there shall be no further transfer on the records of Company or its transfer agent of shares of Company Common Stock and, if Company Certificates or Company Book-Entry Shares are presented to Company for transfer, they shall be canceled against delivery of the applicable Merger Consideration. If any Merger Consideration is to be issued in a name other than that in which the Company Certificate surrendered for exchange is registered, it shall be a condition of such exchange that the Company Certificate so surrendered shall be properly endorsed, with signature guaranteed, or otherwise in proper form for transfer, and that the person requesting such exchange shall pay to Company or its transfer agent any transfer or other taxes required by reason of the issuance of the Merger Consideration in a name other than that of the registered holder of the Company Certificate surrendered, or establish to the satisfaction of the Surviving Corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.4(a), each Company Certificate and each Company Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the applicable Merger Consideration as contemplated by Section 3.1.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lockheed Martin Corp), Agreement and Plan of Merger (Titan Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent Hurricane shall appoint an designate its transfer agent, American Stock Transfer & Trust Company, or another bank or trust company reasonably satisfactory to Cyclone to act as the exchange agent reasonably acceptable to the Company hereunder (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Cyclone Stock (the “Certificates”) or (ii) uncertificated shares of Company Cyclone Stock (the “Uncertificated Shares”). Promptly At the Effective Time, Hurricane shall deposit with the Exchange Agent, to be held in trust for the holders of Cyclone Stock, stock certificates (if such shares shall be certificated) representing shares of Hurricane Stock issuable pursuant to Section 2.04 in exchange for outstanding shares of Cyclone Stock and an amount of cash sufficient to deliver to the holders of Cyclone Stock (other than the Dissenting Shares) the aggregate Merger Consideration. From time to time after the Effective Time, Parent Hurricane shall deposit in cash with make available to the Exchange Agent the Merger Consideration Agent, as needed, cash in amounts that are sufficient to pay cash in lieu of fractional shares pursuant to Section 2.07 and any dividends or other distributions pursuant to Section 2.05(f), in each case, to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directsShares. Promptly after the Effective Time, Parent but in any event within ten (10) Business Days after the Effective Time, Hurricane shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Cyclone Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hologic Inc), Agreement and Plan of Merger (Cytyc Corp)
Surrender and Payment. (a) Prior to At or promptly after the Effective Time, Parent shall appoint an deposit, or shall cause to be deposited, with a paying agent reasonably acceptable selected by Parent (subject to the Company consent, not to be unreasonably withheld, of the Company) (the “Exchange Paying Agent”) ), for the purpose benefit of exchanging for the Merger Consideration holders of (i) certificates representing that immediately prior to the Effective Time evidenced shares of Company Common Stock (the “Certificates”) or and (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amounts payable under Section 3.1(a). Promptly As soon as reasonably practicable after the Effective Time and in any event not later than the fifth (5th) Business Day following the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Paying Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate and such Certificate so surrendered and the shares of Company Common Stock formerly represented by any such Uncertificated Shares shall forthwith be cancelled.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Virtu Financial, Inc.), Agreement and Plan of Merger (Investment Technology Group, Inc.)
Surrender and Payment. (a) Prior At or promptly after the Effective Time (but in any event within one Business Day), the Parent shall deposit, or shall cause to be deposited (i) with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, conditioned or delayed, of the Company) (the “Paying Agent”), for the benefit of the holders of (A) certificates that immediately 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 Time evidenced shares of Company Common Stock (the “Certificates”) or and (iiB) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amount payable as Merger Consideration under Section 3.1(a) (the “Fund”). Promptly As soon as reasonably practicable after the Effective Time and in any event not later than the third (3rd) Business Day following the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Paying Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal in customary form 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 Paying Agent) for use in connection with such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate or Uncertificated Shares, and such Certificate so surrendered and any such Uncertificated Shares so transferred shall forthwith be cancelled.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ocwen Financial Corp), Agreement and Plan of Merger (Ocwen Financial Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably acceptable satisfactory to the Company (the “Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration (i) certificates representing shares to the holders of Company Common Stock (and shall enter into an Exchange Agent Agreement with the “Certificates”) Exchange Agent. At or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after prior to the Effective Time, Parent shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit (from and after the Effective Time) of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock entitled issuable as Stock Consideration and (ii) cash sufficient to payment pay the aggregate Cash Consideration. In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of fractional shares payable pursuant to Section 2.02(a1.06(b) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for and to pay any purpose dividends or other than to fund payments due distributions payable pursuant to Section 2.02(a1.03(f). The Aggregate Merger Consideration All book-entry shares and cash deposited with the Exchange Agent shall, pending its disbursement pursuant to such holders, this Section 1.03(a) shall herewith be invested by referred to as the “Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directsFund”. Promptly after the Effective TimeTime (and in any event within two Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each Person who was, immediately prior to the Effective Time, a holder of record of shares of Company Common Stock at entitled to receive payment of the Effective Time Merger Consideration pursuant to Section 1.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangepayment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kindred Healthcare, Inc), Agreement and Plan of Merger (Rehabcare Group Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent Merger Sub shall appoint an agent reasonably acceptable to a bank or trust company, that has been approved in advance by the Company (which approval shall not be unreasonably withheld, delayed or conditioned), to act as disbursing agent (the “Exchange Disbursing Agent”) for the purpose payment of exchanging for the Merger Consideration (i) upon surrender of certificates representing the shares of Company Stock (Common Stock. Prior to the “Certificates”) Effective Time, the Company and Merger Sub will enter into a disbursing agent agreement with the Disbursing Agent and, at or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after essentially simultaneously with the Effective Time, Parent shall cause Merger Sub to deposit in cash with the Exchange Disbursing Agent cash in an aggregate amount necessary to make the Merger Consideration payments pursuant to be paid in respect Section 2.06(b) to and for the benefit of all holders of the Certificates and the Uncertificated Shares representing shares of Company Common Stock entitled (such amounts being hereinafter referred to payment as the “Exchange Fund”), with such cash to be held in trust by the Disbursing Agent, pursuant to Section 2.02(a) (collectivelythe terms of the disbursing agent agreement referenced above, for the “Aggregate Merger Consideration”)benefit of such holders of such shares. For the avoidance of doubt, such amounts on deposit with The Disbursing Agent shall invest the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent Fund as directed by ParentMerger Sub; provided that any such investments shall be in limited to (i) direct short-term obligations of or guaranteed by the United States of America, in commercial paper or (ii) short-term obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in for which the highest investment granted by a recognized full faith and credit rating agency at the time of the investment. Any net profit resulting fromUnited States of America is pledged to provide for the payment of principal and interest; provided, further, that no loss thereon or interest or income produced by, such thereof shall affect the amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder holders of shares of Company Common Stock at pursuant to Section 2.06(b). Any interest and other income resulting from such investment shall become a part of the Effective Time a letter Exchange Fund, and any amounts in excess of transmittal and instructions (which shall specify that the delivery amounts payable under Section 2.06(b) shall be effectedpromptly paid to Parent. Merger Sub shall, and risk of loss and title Parent shall passcause Merger Sub to, only upon proper delivery of promptly replenish the Certificates or transfer of the Uncertificated Shares Exchange Fund to the Exchange Agent) for use in such exchangeextent of any investment losses.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Uap Holding Corp), Agreement and Plan of Merger (Agrium Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) reasonably acceptable to Company for the purpose of exchanging for certificates which immediately prior to the Merger Consideration (i) certificates representing Effective Time evidenced shares of Company Common Stock (the “Certificates”) for the applicable Merger Consideration pursuant to an exchange agent agreement in form and substance reasonably satisfactory to Company. At or as promptly as practicable (iiand, in any event, within two (2) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly business days) after the Effective Time, Parent shall deposit in cash deposit, or shall cause to be deposited, with the Exchange Agent Agent, the Merger Consideration to be exchanged or paid in respect accordance with this Article II, and Parent shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of all fractional shares pursuant to Section 2.3 and any dividends or distributions to which holders of the Certificates and the Uncertificated Shares representing shares of Company Common Stock may be entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a2.2(c). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal and instructions for use in such exchange (which shall be in form and substance reasonably satisfactory to Parent and Company and shall specify that the delivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) and (ii) instructions to effect the surrender of the Certificates in exchange for use the applicable Merger Consideration, cash payable in such exchangerespect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Motion, Inc.), Agreement and Plan of Merger (Traffix Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a nationally recognized financial institution reasonably acceptable to Parent and the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock Shares (the “Certificates”) or (ii) uncertificated shares of Company Stock Shares (the “Uncertificated Shares”). Promptly after The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or prior to the Effective Time, Parent shall deposit in cash with with, or otherwise make available to, the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of Company Stock entitled to payment the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.02(a) (collectively2.04(d), all or a portion of the “Aggregate Merger Consideration”Company Equity Award Consideration to all or a portion of the Employee Holders). For the avoidance of doubt, such amounts on deposit with Parent agrees to make available to the Exchange Agent shall not be used for Agent, from time to time as needed, any purpose other than dividends or distributions to fund payments due which such holder is entitled pursuant to Section 2.02(a2.03(f). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective TimeTime (and in any event within five (5) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock Shares at the Effective Time (other than the Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. Such letter of transmittal shall be in the form and have such provisions as Parent and the Company may reasonably agree.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pioneer Natural Resources Co), Agreement and Plan of Merger (Pioneer Natural Resources Co)
Surrender and Payment. (a) Prior to the Effective Time, Parent Sirius shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) reasonably acceptable to XM for the purpose of exchanging for certificates which immediately prior to the Merger Consideration (i) certificates representing Effective Time evidenced shares of Company XM Merger Stock (the “Certificates”) for the applicable Merger Consideration pursuant to an exchange agent agreement in form and substance reasonably satisfactory to XM. At or as promptly as practicable (iiand, in any event, within two (2) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly business days) after the Effective Time, Parent Sirius shall deposit in cash deposit, or shall cause to be deposited, with the Exchange Agent Agent, the Merger Consideration to be exchanged or paid in respect accordance with this Article II, and Sirius shall make available from time to time after the Effective Time as necessary, cash in an amount sufficient to pay any cash payable in lieu of all of the Certificates and the Uncertificated Shares representing fractional shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate 2.3 and any dividends or distributions to which holders of shares of XM Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not Stock may be used for any purpose other than to fund payments due entitled pursuant to Section 2.02(a2.2(c). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent Surviving Corporation shall send, or shall cause the Exchange Agent to send, to each holder of record of shares of Company XM Merger Stock at immediately prior to the Effective Time whose shares were converted into the right to receive the applicable Merger Consideration pursuant to Section 2.1, promptly after the Effective Time, (i) a letter of transmittal and instructions for use in such exchange (which shall be in form and substance reasonably satisfactory to Sirius and XM and shall specify that the delivery shall be effected, and risk of loss and title in respect of the Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) and (ii) instructions to effect the surrender of the Certificates in exchange for use the applicable Merger Consideration, cash payable in such exchangerespect thereof in lieu of any fractional shares pursuant to Section 2.3 and any dividends or other distributions payable in respect thereof pursuant to Section 2.2(c).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xm Satellite Radio Holdings Inc), Agreement and Plan of Merger (Sirius Satellite Radio Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent Parent, with the Company’s prior approval (which shall not be unreasonably withheld or delayed), shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing that immediately prior to the Effective Time represented shares of Company Stock (the “Certificates”) or ), and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Concurrently with the Effective Time, Parent shall deposit in cash with deposit, or shall cause to be deposited with, the Exchange Agent for the Merger Consideration to be paid in respect of all benefit of the Certificates 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 the Uncertificated Shares (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 entitled to payment 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 Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by deemed to have been issued at the United States of AmericaEffective Time. Promptly (and, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Serviceany event, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly within two Business Days) after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent in accordance with the procedures set forth in the letter of transmittal) for use in such exchange, such letter of transmittal and instructions to be in such form and have such other provisions as Parent and the Company may reasonably agree.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Telewest Global Inc), Agreement and Plan of Merger (NTL Inc)
Surrender and Payment. (a) Prior to At or promptly after (but in no event later than 2 Business Days following) the Effective Time, the Parent shall appoint an deposit, or shall cause to be deposited, with a paying agent reasonably acceptable selected by Parent (subject to the Company consent, not to be unreasonably withheld, of the Company) (the “Exchange Paying Agent”) ), for the purpose benefit of exchanging for the Merger Consideration holders of (i) certificates representing that immediately prior to the Effective Time evidenced shares of Company Class A Common Stock (the “Certificates”) or and (ii) uncertificated shares of Company Class A Common Stock (the “Uncertificated Shares”), 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). Promptly As soon as reasonably practicable after the Effective Time and in any event not later than the fifth (5th) Business Day following the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Paying Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each holder of shares of Company Class A Common Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Class A Common Stock formerly represented by any such Certificate and such Certificate so surrendered and the shares of Company Class A Common Stock formerly represented by any such Uncertificated Shares shall forthwith be cancelled.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Virtu Financial, Inc.), Agreement and Plan of Merger (KCG Holdings, Inc.)
Surrender and Payment. (a) Prior At or prior to the Effective Time, Parent shall appoint an agent reasonably acceptable make available to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration Agent (i) evidence of the Parent Class A Common Stock in book-entry form (and/or certificates representing the shares of Parent Class A Common Stock at Parent’s election) sufficient to deliver the aggregate Stock Consideration, (ii) immediately available funds equal to any dividends or distributions payable in accordance with Section 2.04(c), (iii) immediately available funds equal to the aggregate Cash Consideration, and (iv) cash in lieu of any fractional shares to be issued pursuant to Section 2.02 and paid pursuant to Section 2.04(f) in exchange for outstanding shares of Company Stock (other than Dissenting Shares) (such cash and book-entry or certificates for shares of Parent Class A Common Stock collectively being referred to as the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated SharesExchange Fund”). Promptly after the Effective Time, Parent shall deposit in Such cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, funds may be invested by the Exchange Agent as directed by Parent; provided that (A) no such investment or losses thereon shall affect the Merger Consideration or other amounts payable hereunder, (B) if, for any reason (including if Dissenting Shares cease to be Dissenting Shares or if a dividend or distribution payable in accordance with Section 2.04(c) is paid), the cash and the evidence of book-entry or certificates for shares of Parent Class A Common Stock in the Exchange Fund becomes insufficient to make the payments contemplated by this Article 2, then Parent shall promptly provide additional cash, evidence of book-entry or certificates for shares of Parent Class A Common Stock, as applicable to the Exchange Agent for the benefit of the former stockholders of the Company sufficient to make the payments contemplated by this Article 2 and (C) 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, 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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Amc Entertainment Holdings, Inc.), Agreement and Plan of Merger (Carmike Cinemas Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent the Company shall appoint an agent designate a nationally recognized commercial bank or trust company reasonably acceptable to the Company Parent to act as agent (the “Exchange Agent”) for the purpose benefit of exchanging for the Merger Consideration (i) certificates representing shares holders of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”)Shares who exchange their Shares in accordance with this Section 2.03. Promptly after Prior to the Effective Time, Parent shall deposit in cash deposit, or shall cause to be deposited, with the Exchange Agent 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 be paid in respect holders of all Shares as of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment Effective Time pursuant to Section 2.02(a) (collectivelysuch 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 “Aggregate Merger ConsiderationExchange Fund”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement pursuant to such holdersirrevocable 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 obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangethis Section 2.03(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Westinghouse Air Brake Technologies Corp)
Surrender and Payment. (a) Prior to the Effective Time, Parent Newco shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock Aspen Shares (the each a “CertificatesCertificate”) or (ii) uncertificated shares Aspen Shares which immediately prior to the Effective Time were registered to a holder on the stock transfer books of Company Stock Aspen (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent Newco shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Agent, for exchange in accordance with this Section 2.05 through the Merger Consideration to be paid Exchange Agent, (i) evidence of shares in respect of all of book-entry form representing the Certificates and the Uncertificated Shares representing shares of Company Newco Stock entitled to payment issuable pursuant to Section 2.02(a2.04 and (ii) (collectivelycash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Newco agrees to make promptly available, the “Aggregate Merger Consideration”). For the avoidance of doubtdirectly or indirectly, such amounts on deposit with to the Exchange Agent shall not be used for from time to time as needed additional cash sufficient to pay any purpose dividends or other than distributions to fund payments due which holders of Aspen Shares are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement 2.05(f) and cash in lieu of any fractional shares of Newco Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holders are entitled pursuant to Parent or as Parent otherwise directsSection 2.11. Promptly after the Effective TimeTime and in any event within three Business Days after the Closing Date, Parent Newco shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock Aspen Shares represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Newco Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund.” Newco shall cause the Exchange Agent to deliver the Merger Consideration out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Newco. Any interest and other income resulting from such investments shall be the property of, and paid to, Newco upon termination of the Exchange Fund.
Appears in 1 contract
Surrender and Payment. (a) Prior At or promptly after the Effective Time (but in any event within one Business Day), the Parent shall deposit, or shall cause to be deposited (i) with a paying agent selected by Parent (subject to the consent, not to be unreasonably withheld, conditioned or delayed, of the Company) (the “Paying Agent”), for the benefit of the holders of (A) certificates that immediately 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 Time evidenced shares of Company Common Stock (the “Certificates”) or and (iiB) uncertificated shares of Company Common Stock (the “Uncertificated Shares”), for exchange in accordance with this Article III, cash in an amount equal to the aggregate amount payable as Merger Consideration under Section 3.1(a) (the “Fund”). Promptly As soon as reasonably practicable after the Effective Time and in any event not later than the third (3rd) Business Day following the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Paying Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, mail to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal in customary form 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 Paying Agent) for use in connection with such exchange. Upon proper surrender of a Certificate for exchange and cancellation or transfer of Uncertificated Shares to the Paying Agent, together with a letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other customary documents as may be required pursuant to such instructions, the holder of such Certificate or Uncertificated Shares shall be entitled to receive in exchange therefor the Merger Consideration in respect of the shares of Company Common Stock formerly represented by any such Certificate or Uncertificated Shares, and such Certificate so surrendered and any such Uncertificated Shares so transferred shall forthwith be cancelled.
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Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent (and pay the fees and expenses of) a bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Common Stock (the “Certificates”) or ), and (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”). At or prior to the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent cash sufficient to pay the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated Shares (the “Payment Fund”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, send to each record holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in effecting the surrender of such exchangeholder’s Certificates or Uncertificated Shares in exchange for the Merger Consideration to be received by such holder pursuant to this Agreement. The Payment Fund, once deposited with the Exchange Agent, shall, pending its disbursement to such holders, be held in trust for the benefit of such holders and shall not be used for any other purposes; provided, however, that Parent may direct the Exchange Agent to invest such cash for the benefit of Parent in (i) short-term direct obligations of the United States of America, (ii) short-term obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) money market funds investing solely in a combination of the foregoing.
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Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a nationally recognized financial institution reasonably acceptable to Parent and the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock Shares (the “Certificates”) or (ii) uncertificated shares of Company Stock Shares (the “Uncertificated Shares”). Promptly after The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or prior to the Effective Time, Parent shall deposit in cash with or otherwise make available to the Exchange Agent Agent, the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of Company Stock entitled to payment the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.02(a) (collectively2.04(e), all or a portion of the “Aggregate Merger Consideration”Company Equity Award Consideration to all or a portion of the Employee Holders). For the avoidance of doubt, such amounts on deposit with Parent agrees to make available to the Exchange Agent shall not be used for Agent, from time to time as needed, any purpose other than dividends or distributions to fund payments due which such holder is entitled pursuant to Section 2.02(a2.03(f). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective TimeTime (and in any event within five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock Shares at the Effective Time (other than the Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. Such letter of transmittal shall be in the form and have such provisions as Parent and the Company may reasonably agree.
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Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock (the each a “CertificatesCertificate”) or (ii) uncertificated shares of Company Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(a2.04 and (ii) (collectivelycash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, the “Aggregate Merger Consideration”). For the avoidance of doubtdirectly or indirectly, such amounts on deposit with to the Exchange Agent shall not be used for from time to time as needed additional cash sufficient to pay any purpose dividends or other than distributions to fund payments due which holders of Company Stock are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holders are entitled pursuant to Parent or as Parent otherwise directsSection 2.09. Promptly after the Effective TimeTime and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that 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 AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Parent Common Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article 2 out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
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Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Mxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Goldman Sachs Group Inc)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably acceptable satisfactory to the Company (the “Exchange Paying Agent”) to act as paying agent for the purpose of exchanging for paying the Merger Consideration (i) certificates representing shares to the holders of Company Common Stock (and shall enter into a paying agent agreement with the “Certificates”) Paying Agent. At or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after prior to the Effective Time, Parent shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Paying Agent, for the Merger Consideration to be paid in respect of all benefit (from and after the Effective Time) of the Certificates and the Uncertificated Shares representing holders of shares of Company Stock entitled Common Stock, for payment in accordance with this Section 2.03 through the Paying Agent, cash sufficient to payment pay the aggregate Merger Consideration pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)2.02. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration All cash deposited with the Exchange Paying Agent shall, pending its disbursement pursuant to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments this Section 2.03(a) shall be in obligations of or guaranteed by referred to as the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. “Payment Fund.” Promptly after the Effective TimeTime (and in any event within two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Paying Agent to send, to each Person who was, immediately prior to the Effective Time, a holder of record of shares of Company Common Stock at entitled to receive payment of the Effective Time Merger Consideration pursuant to Section 2.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentPaying Agent in accordance with the procedures set forth in the letter of transmittal) for use in such exchangepayment. The Payment Fund may be invested by the Paying Agent as directed by Parent in short term obligations of the United States of America with maturities of no more than thirty (30) days, short term obligations guaranteed by the United States of America, commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or money market funds having a rating in the highest investment category granted by a recognized credit rating agency at the time of investment. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as Parent directs.
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Surrender and Payment. ({a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “'"Exchange Agent”") and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company {the '"Exchange Agent Agreement") for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing payable in respect of the shares of Company Stock (the “Certificates”) or (ii) uncertificated shares Common Stock. As of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent. for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock. for exchange in accordance with this Section 2 04 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(a2.03(a)(i) in exchange for outstanding shares of Company Common Stock and (collectively, y) cash sufficient to pay the “Aggregate Merger Consideration”aggregate Cash Consideration payable pursuant to Section 2.03(a)(i). For the avoidance of doubtParent agrees to make available, such amounts on deposit with directly or indirectly, to the Exchange Agent shall not be used for from time to time as needed additional cash and/or shares of Parent Common Stock sufficient to pay any purpose dividends or other than distributions to fund payments due which such holders are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement 2.04<0 and cash in lieu of any fractional share of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holder is entitled pursuant to Parent or as Parent otherwise directsSection 2 08. Promptly after the Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. Al I certificates (or evidence of shares in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2 04 shall be referred to in this Agreement as the '"Exchange Fund." Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided.further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests: provided.further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Surrender and Payment. (a) 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 aggregate Merger Consideration payable in respect thereof (i) certificates representing shares of Company Capital Stock (the “Certificates”) or (ii) uncertificated shares of Company Capital Stock (the “Uncertificated Shares”). Promptly after At the Effective Time, Parent shall deposit in cash with and make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectivelybut not, the “Aggregate Merger Consideration”). For for the avoidance of doubt, such amounts on deposit the Dissenting Shares, the Company Option Merger Consideration or the Company RSU Merger Consideration) (the “Exchange Fund”). All cash deposited with the Exchange Agent shall not only be used for any purpose other than to fund payments due pursuant to Section 2.02(a)the purposes provided in this Agreement, or as otherwise agreed by the Company and Parent before the Effective Time. The Aggregate Merger Consideration deposited with Any income from investment of the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent Fund will be payable to Parent or as Parent otherwise directsthe Surviving Corporation. Promptly after the Effective Time (but in no event later than five Business Days after the Effective Time), Parent shall send, or shall cause the Exchange Agent to send, send to each holder of shares of Company Capital Stock at the Effective Time (other than the Company, Parent, Merger Subsidiary, any wholly-owned Subsidiary of the Company or Parent, or holders of Dissenting Shares who have not subsequently withdrawn or lost their rights of appraisal) a letter of transmittal transmittal, in form and substance reasonably acceptable to the Surviving Corporation, and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof as provided in Section 1.7) or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably acceptable satisfactory to the Company (the “Exchange Agent”) for the purpose of exchanging Certificates or Uncertificated Shares for the Merger Consideration (i) certificates representing shares of Company Stock (and shall enter into an Exchange Agent Agreement with the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”)Exchange Agent. Promptly after At the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit (from and after the Effective Time) of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for exchange in accordance with this Section through the Exchange Agent, cash sufficient to pay the aggregate Merger Consideration for all outstanding shares of Company Common Stock entitled to payment pursuant to as of the Effective Time, except those described in Section 2.02(a) (collectively, the “Aggregate Merger Consideration”2.02(b). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration All cash deposited with the Exchange Agent shall, pending its disbursement pursuant to such holders, this Section 2.03(a) shall herewith be invested by referred to as the “Exchange Fund.” At the Effective Time Parent shall make available for hand pickup from the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by and within two Business Days following the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective TimeClosing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at that have been converted into the right to receive the Merger Consideration as of the Effective Time (i) a letter of transmittal in a form mutually agreed upon by Parent, the Company and instructions (the Exchange Agent, 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 AgentAgent (the “Letter of Transmittal”) for use in such exchangeexchange and (ii) instructions for use in effecting the surrender of the Certificates or transfer of Uncertificated Shares in exchange for cash constituting the applicable portion of the Exchange Fund (including by means of hand-delivery). The Letter of Transmittal and instructions will include an IRS Form W-9 or other applicable tax identification form which must be completed and executed by each holder of Company Common Stock before such holder receives its portion of the Exchange Fund.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging certificates representing Company Shares (a “Certificate”) for the Merger Consideration consideration set forth in Section 2.1 (i) certificates representing through Section 2.1(d)(iv). The shares of Company Stock Parent Common and cash to be received as consideration pursuant to Section 2.1(d) (i) through Section 2.1(d)(v), together with cash in lieu of fractional shares as specified in Section 2.8, is referred to herein as the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Closing Merger Consideration.” Parent shall deposit in cash with make available to the Exchange Agent Agent, as needed, the Closing Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Company Shares representing (disregarding for such purpose any Company Shares that may potentially be dissenting shares of Company Stock entitled to payment pursuant to Section 2.02(a2.6, but less the portions of the Closing Merger Consideration that are Escrow Cash and Escrow Shares to be deposited in the Escrow Fund (as defined in Section 9.2(a)) (collectivelyand less the portions of the Closing Merger Consideration that are to be deposited in the Earn Out Escrow), the “Aggregate Merger Consideration”). For the avoidance of doubttogether with any dividends, such amounts on deposit with the Exchange Agent shall not be used for any purpose interest or other than to fund payments due distributions payable pursuant to Section 2.02(a2.5(g). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares record of Company Stock Shares at the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent, shall explain that the Securityholders are bound by the indemnification provisions of ARTICLE IX, shall explain how all requirements under Section 2.5(c) for use in such exchangebelow may be met, and how withholding may be avoided, or if not avoided, will be calculated under Section 2.9 below).
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent for the purpose of exchanging (in each case, other than Excluded Shares and Hook Stock Shares) for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock (the each a “CertificatesCertificate”) or (ii) uncertificated shares of Company Stock which immediately prior to the Effective Time were registered to a holder on the stock transfer books of the Company (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Stock, for exchange in accordance with this Section 2.06 through the Exchange Agent, (i) evidence of shares in book-entry form representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(a2.04 and (ii) (collectivelycash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Parent agrees to make promptly available, the “Aggregate Merger Consideration”). For the avoidance of doubtdirectly or indirectly, such amounts on deposit with to the Exchange Agent shall not be used for from time to time as needed additional cash sufficient to pay any purpose dividends or other than distributions to fund payments due which holders of Company Stock are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement Section 2.06(f) and cash in lieu of any fractional shares of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holders are entitled pursuant to Parent or as Parent otherwise directsSection 2.09. Promptly after the Effective TimeTime and in any event within three (3) Business Days after the Closing Date, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that 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 AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Parent Common Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.06 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article 2 out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that no such investment or losses thereon shall affect the dividends or other distributions to which holders of Company Stock are entitled pursuant to Section 2.06(f) or cash in lieu of fractional interests to which holders of Company Stock are entitled pursuant to Section 2.09. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
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Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint enter into an agent agreement (in a form reasonably acceptable to the Company Company) with an agent selected by Parent (that is reasonably satisfactory to the Company) (the “Exchange Paying 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”). Promptly after At or prior to the Effective Time, Parent shall deposit (or cause to be deposited) in cash with the Exchange Paying Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock issued and outstanding prior to the Effective Time (other than Owned Shares and Dissenting Shares) entitled to payment pursuant to Section 2.02(a2.02(b) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Paying Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a2.02(b). The Aggregate Merger Consideration deposited with the Exchange Paying Agent shall, pending its disbursement to such holders, be invested by the Exchange Paying Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment grade granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Paying Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time and in any event not later than the third Business Day following the Effective Time, Parent shall send, or shall cause the Exchange Paying Agent to send, to each holder of shares of Company Stock (other than Owned Shares and Dissenting Shares) at the Effective Time a letter of transmittal in customary form and instructions (which shall specify that the delivery shall be effected, and risk of loss and title with respect to any Certificates shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Paying Agent) for use in such exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Premiere Global Services, Inc.)
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) or and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after As of the Effective Time, Parent shall deposit in cash with the Exchange Agent the aggregate Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger ConsiderationPayment Fund”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America, 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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Stock shall be entitled under Section 2.03, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit trust additional cash with the Exchange Agent will sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be payable to Parent or as Parent otherwise directsliable for payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing payable in respect of the shares of Company Stock (the “Certificates”) or (ii) uncertificated shares Common Stock. As of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(a2.03(a)(i) in exchange for outstanding shares of Company Common Stock and (collectively, y) cash sufficient to pay the “Aggregate Merger Consideration”aggregate Cash Consideration payable pursuant to Section 2.03(a)(i). For the avoidance of doubtParent agrees to make available, such amounts on deposit with directly or indirectly, to the Exchange Agent shall not be used for from time to time as needed additional cash and/or shares of Parent Common Stock sufficient to pay any purpose dividends or other than distributions to fund payments due which such holders are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement 2.04(f) and cash in lieu of any fractional share of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holder is entitled pursuant to Parent or as Parent otherwise directsSection 2.08. Promptly after the Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of shares in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
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Surrender and Payment. (ac) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of all the shares of the Company Stock represented by Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Shares. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, 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 losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the shareholders of the Company in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America, America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or Xxxxx’x Investors Service, Inc. or Standard & Poor’s Inc., respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. The parties acknowledge and agree that such funds are owned by Parent for Tax purposes, until paid pursuant to the terms hereof and, accordingly, any income earned on such amounts will be treated as income of Parent. Promptly after the Effective TimeTime (but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time notice advising such holder of the effectiveness of the Merger, which notice shall include appropriate transmittal instructions (including, if applicable, a letter of transmittal and instructions (transmittal), which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) , for use in such exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Raven Industries Inc)
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the aggregate Merger Consideration to be paid in respect of all the shares of the Company Stock represented by Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Shares. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, 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 losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the shareholders of the Company in the amount of any such losses and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America, America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or Xxxxx’x Investors Service, Inc. or Standard & Poor’s Inc., respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. The parties acknowledge and agree that such funds are owned by Parent for Tax purposes, until paid pursuant to the terms hereof and, accordingly, any income earned on such amounts will be treated as income of Parent. Promptly after the Effective TimeTime (but not later than two Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time notice advising such holder of the effectiveness of the Merger, which notice shall include appropriate transmittal instructions (including, if applicable, a letter of transmittal and instructions (transmittal), which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) , for use in such exchange.
Appears in 1 contract
Surrender and Payment. (a) Prior Not less than ten (10) Business Days prior to the Effective Time, Parent shall appoint an a paying agent reasonably acceptable satisfactory to the Company (the “Exchange "Paying Agent”") and enter into a paying agent agreement with such Paying Agent for the purpose of exchanging Share Certificates for the Initial Merger Consideration (i) certificates representing shares of Company Stock (in accordance with this Article II. On the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after same Business Day as, and prior to, the Effective Time, Parent shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Paying Agent, for the benefit of the Stakeholders, by wire transfer of immediately available funds, cash in an amount sufficient to pay the Initial Merger Consideration (such cash being hereinafter referred to be paid in respect of all of as the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”"Exchange Fund"). For the avoidance of doubt, such amounts on deposit with the The Exchange Agent Fund shall not be used for any purpose other than the Payment of the Initial Merger Consideration and shall not be subject to fund payments due pursuant to any claim of Parent under Section 2.02(a)2.9 or Article VII. The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, Fund shall be invested by the Exchange Paying Agent as directed by Parent; provided provided, however, that such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Moody's Investors Service, Inc. or Standard & Poor’s respectively's Corporation, respxxxxxxxy, or in money market funds having a rating in certificates of deposit, bank repurchase agreements or banker's acceptances of commercial banks with capital exceeding $1 billion (based on the highest investment granted by a recognized credit rating agency at the time most recent financial statements of the investmentsuch bank which are then publicly available). Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will investments shall be payable to Parent or as Parent otherwise directsthe Surviving Corporation. Promptly after Any losses resulting from the Effective Time, Parent shall send, or shall cause investment of the Exchange Agent Fund shall not in any way diminish Parent's and Merger Subsidiary's obligations to send, to each holder of shares of Company Stock at pay the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery full amount of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangeInitial Merger Consideration.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a nationally recognized financial institution reasonably acceptable to Parent and the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock Shares (the “Certificates”) or (ii) uncertificated shares of Company Stock Shares (the “Uncertificated Shares”). Promptly after The Exchange Agent agreement pursuant to which Parent shall appoint the Exchange Agent shall be in form and substance reasonably acceptable to the Company and Parent. At or prior to the Effective Time, Parent shall deposit in cash with with, or otherwise make available to, the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares (other than the Company Restricted Stock) and the Company Equity Award Consideration in respect of the Non-Employee Holders (and, if determined by Parent pursuant to Section 2.04(d), all or a portion of the Company Stock Equity Award Consideration to all or a portion of the Employee Holders). Parent agrees to make available to the Exchange Agent, from time to time as needed, any dividends or distributions to which such holder is entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”2.03(f). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective TimeTime (and in any event within five (5) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock Shares at the Effective Time (other than the Company Restricted Stock), a letter of transmittal and instructions in customary form and reasonably acceptable to the Company (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of the Uncertificated Shares to the Exchange AgentAgent and shall include customary provisions with respect to delivery of an “agent’s message” regarding book-entry transfer of Uncertificated Shares) for use in such exchange. Such letter of transmittal shall be in the form and have such provisions as Parent and the Company may reasonably agree.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company that is reasonably acceptable satisfactory to the Company (the “Exchange Agent”) for the purpose of exchanging for paying the Merger Consideration (i) certificates representing shares to the holders of Company Common Stock (and shall enter into an Exchange Agent Agreement that is reasonably satisfactory to the “Certificates”) Company with the Exchange Agent. At or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after prior to the Effective Time, Parent shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit (from and after the Effective Time) of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for payment and exchange in accordance with this Section 1.03 through the Exchange Agent, (i) book-entry shares (which, to the extent subsequently requested, shall be exchanged for certificates) representing the total number of shares of Parent Common Stock entitled issuable as Stock Consideration and (ii) cash sufficient to payment pay the aggregate Cash Consideration. In addition, Parent shall deposit, or cause to be deposited, with the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of fractional shares payable pursuant to Section 2.02(a1.06(b) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for and to pay any purpose dividends or other than to fund payments due distributions payable pursuant to Section 2.02(a1.03(f). The Aggregate Merger Consideration All book-entry shares and cash deposited with the Exchange Agent shall, pending its disbursement pursuant to such holders, this Section 1.03(a) shall herewith be invested by referred to as the “Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directsFund”. Promptly after the Effective TimeTime (and in any event within two Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each Person who was, immediately prior to the Effective Time, a holder of record of shares of Company Common Stock at entitled to receive payment of the Effective Time Merger Consideration pursuant to Section 1.02(a) a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title 2 Table of Contents shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangepayment.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Metropolitan Health Networks Inc)
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Prior to, or substantially concurrently with, the Effective Time, Parent shall deposit in cash with make available (A) to the Exchange Agent Agent, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section Section 2.02(a) and (collectivelyB) to the Company, cash in U.S. dollars sufficient to pay the “Aggregate Merger Consideration”)aggregate amount in accordance with Section 2.05 for all Company Equity Awards and Company Cash Incentive Awards. For the avoidance of doubt, such amounts on deposit with Such funds held by the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, may be invested by the Exchange Agent as directed by ParentPxxxxx; provided that (x) no such investment or losses thereon shall affect the Merger Consideration payable hereunder and following any 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 (y) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting frominterest, gain or interest or other income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. Promptly after the Effective TimeTime (but no later than two (2) Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock represented by Certificates at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange and, in the case of Uncertificated Shares, instructions in customary form for use in such exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AssetMark Financial Holdings, Inc.)
Surrender and Payment. (a) Prior Immediately prior to the Effective Time, Parent shall appoint an agent reasonably acceptable deposit or shall cause to be deposited, with a nationally recognized financial institution selected by Parent with the Company Company’s prior approval (such approval not to be unreasonably withheld or delayed) (the “Exchange Paying Agent”), for the benefit of the Company’s stockholders (other than holders of Dissenting Shares or Excluded Shares), a cash amount in immediately available funds necessary for the Paying Agent to make payments contemplated by Section 3.02(a) (such cash being referred to as the “Exchange Fund”). With respect to any Dissenting Shares, Parent shall only be required to deposit or cause to be deposited with the Paying Agent funds sufficient to pay the aggregate Merger Consideration payable in respect of such Dissenting Shares if the holder thereof fails to perfect or effectively withdraws or losses its appraisal rights under the DGCL. The Paying Agent shall also act as the agent for the Company’s stockholders for the purpose of exchanging for receiving and holding the Merger Consideration (istockholders’(i) certificates representing shares of Company Stock Shares (the “Certificates”) or (ii) uncertificated shares of Company Stock Shares represented by book-entry (the “Uncertificated Shares”)) but shall acquire no rights or interests in Shares represented thereby. Promptly after the Effective Time, The Paying Agent agreement pursuant to which Parent shall deposit appoint the Paying Agent shall be in cash with form and substance reasonably acceptable to the Company and Parent. The Paying Agent shall invest the Exchange Fund as directed by Parent. Any interest and other income resulting from such investment shall become a part of the Exchange Fund, and any amounts in excess of the amounts payable under Section 3.02(a) shall be promptly returned to the Surviving Corporation. The Paying Agent shall make delivery of the aggregate Merger Consideration to be paid in respect of all out of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Exchange Fund in accordance with this Agreement. For the avoidance of doubt, such amounts on deposit with the The Exchange Agent Fund shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; that is not expressly provided that such investments shall be for in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchangethis Agreement.
Appears in 1 contract
Surrender and Payment. (a) Prior Following the date hereof and prior to the Effective Time, Parent shall shall, appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for to act as the purpose of exchanging for exchange agent in the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) Merger. At or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after before the Effective Time, Parent shall deposit in cash with the Exchange Agent (i) a cash amount in immediately available funds equal to the Merger Cash Consideration to be paid in respect and (ii) the number of all of the Certificates and the Uncertificated Shares representing shares of Company Parent Common Stock entitled equal to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Stock Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Timeappointment of the Exchange Agent, Parent shall send, or shall cause the Exchange Agent to send, mail to each holder of shares record of Company Stock at Shares as of immediately prior to the Effective Time entitled to receive Aggregate Merger Consideration pursuant to Section 2.5, a letter of transmittal and instructions (which shall be in the form and substance reasonably acceptable to Parent and the Company) (a “Letter of Transmittal”) and which shall (i) have customary representations and warranties as to title, authorization, execution and delivery, (ii) have a customary release of all claims against Parent and the Company arising out of or related to such holder’s ownership of Company Shares, (iii) specify that the delivery shall be effected, and risk of loss and title to the certificates evidencing such Company Shares (the “Certificates”), to the extent such Company Shares are certificated, shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent, (iv) include instructions for use in effecting the surrender of the Certificates pursuant to the Letter of Transmittal and (v) permit each Stockholder to allocate, on a share-by-share or “block” basis, those Company Shares exchanged for such exchangeholder’s share of the Cash Consideration.
Appears in 1 contract
Samples: Agreement and Plan of Merger (INSU Acquisition Corp. II)
Surrender and Payment. (a) Prior to the Effective Timemailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably acceptable satisfactory to the Company (the “"Exchange Agent”") for the purpose of exchanging for 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, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration (iissuable pursuant to Section 2.1(c) certificates representing shares of Company Stock (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 “Certificates”) or Warrant, (ii) uncertificated 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 Company Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the “Uncertificated 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 (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, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent Surviving Corporation will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall will cause the Exchange Agent to send, to each holder of shares of Company Stock at Shares immediately prior to the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent) for use in such exchange).
Appears in 1 contract
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Shares. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, 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 losses if such funds are inadequate to pay the amounts to which holders of Company Stock are entitled pursuant to this Article 2, then 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 deficiency and (ii) such investments shall only be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America, America and backed by the full faith and credit of the United States of America or in commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation or Xxxxx’x Investors Service, Inc. or Standard & Poor’s Inc., respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. Promptly As promptly as reasonably practicable after the Effective TimeTime (but no later than five Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Common Stock (the “Certificates”) or and (ii) uncertificated shares of Company Common Stock (the “Uncertificated Shares”). Promptly after As of the Effective Time, Parent shall deposit in cash with the Exchange Agent the aggregate Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of that are not Company Restricted Stock entitled to payment pursuant to Section 2.02(a) Awards (collectively, the “Aggregate Merger ConsiderationPayment Fund”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent The Payment Fund shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed by the United States of America, 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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of shares of Company Common Stock shall be entitled under Section 2.03, Parent shall take all steps necessary to enable or cause the Surviving Corporation promptly to deposit in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit trust additional cash with the Exchange Agent will sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be payable to Parent or as Parent otherwise directsliable for payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of shares for the Merger Consideration. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each record holder of shares of Company Common Stock at the Effective Time 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 such exchange.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sun Microsystems, Inc.)
Surrender and Payment. (a) Prior to the Effective Timemailing of the Proxy Statement (as defined in Section 4.4), Parent shall appoint an agent reasonably acceptable satisfactory to the Company (the “Exchange AgentEXCHANGE AGENT”) for the purpose of exchanging for 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, (i) except as set forth in the next sentence of this Section 2.2(a), certificates representing the Merger Consideration (iissuable pursuant to Section 2.1(c) certificates representing shares of Company Stock (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 “Certificates”) or Warrant, (ii) uncertificated 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 Company Parent Common Stock comprising the Escrow Amount (as defined in Section 2.5) shall not be deposited with the “Uncertificated 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 (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, Parent shall deposit in cash with the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent Surviving Corporation will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall will cause the Exchange Agent to send, to each holder of shares of Company Stock at Shares immediately prior to the Effective Time a letter of transmittal and instructions for use in such exchange (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated certificates representing Shares to the Exchange Agent) for use in such exchange).
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent Newco shall appoint an exchange agent reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration Consideration, (i) certificates representing shares of Company Stock Aspen Shares (the each a “CertificatesCertificate”) or (ii) uncertificated shares Aspen Shares which immediately prior to the Effective Time were registered to a holder on the stock transfer books of Company Stock Aspen (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent Newco shall deposit in cash deposit, or cause to be deposited, with the Exchange Agent Agent, for exchange in accordance with this Section 2.05 through the Merger Consideration to be paid Exchange Agent, (i) evidence of shares in respect of all of book-entry form representing the Certificates and the Uncertificated Shares representing shares of Company Newco Stock entitled to payment issuable pursuant to Section 2.02(a2.04 and (ii) (collectivelycash in immediately available funds in an amount sufficient for the payment of all cash amounts payable pursuant to Section 2.04. Newco agrees to make promptly available, the “Aggregate Merger Consideration”). For the avoidance of doubtdirectly or indirectly, such amounts on deposit with to the Exchange Agent shall not be used for from time to time as needed additional cash sufficient to pay any purpose dividends or other than distributions to fund payments due which holders of Aspen Shares are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement 2.05(f) and cash in lieu of any fractional shares of Newco Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holders are entitled pursuant to Parent or as Parent otherwise directsSection 2.11. Promptly after the Effective TimeTime and in any event within three Business Days after the Closing Date, Parent Newco shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock Aspen Shares represented by a Certificate at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange AgentAgent and which shall otherwise be in customary form and shall include customary provisions with respect to delivery of an “agent’s message” regarding the book-entry transfer of Uncertificated Shares) for use in such exchange. All evidence of shares of Newco Stock in book-entry form and cash deposited with the Exchange Agent pursuant to this Section 2.05 shall be referred to in this Agreement as the “Exchange Fund.” Newco shall cause the Exchange Agent to deliver the Merger Consideration out of the Exchange Fund in accordance herewith. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Newco. Any interest and other income resulting from such investments shall be the property of, and paid to, Newco upon termination of the Exchange Fund.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
Surrender and Payment. (a) Prior to the Effective Time, Parent Merger Subsidiary shall appoint an agent a bank or trust company reasonably acceptable satisfactory to the Company to act as disbursing agent (the “Exchange "Disbursing Agent”") for the purpose payment of exchanging for the Merger Consideration (i) upon surrender of certificates representing shares of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Prior to the Effective Time, Merger Subsidiary will enter into a disbursing agent agreement with the Disbursing Agent, and Parent shall cause Merger Subsidiary to deposit in cash with the Exchange Disbursing Agent cash in an aggregate amount necessary to make the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment payments pursuant to Section 2.02(a3.06(b) to holders of Shares (collectively, such amounts being hereinafter referred to as the “Aggregate Merger Consideration”)"Exchange Fund") prior to the time such payments are to be made by the Disbursing Agent. For purposes of determining the avoidance amount to be so deposited, Merger Subsidiary shall assume that no stockholder of doubtthe Company will perfect any right to appraisal of his, such amounts on deposit with her or its Shares. The Disbursing Agent shall invest the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Exchange Agent Fund as directed by ParentMerger Subsidiary; provided that such investments shall be in (i) direct obligations of or guaranteed by the United States of America, in (ii) obligations for which the full faith and credit of the United States of America is pledged to provide for the payment of principal and interest, or (iii) commercial paper obligations rated A-1 or P-1 or better the highest quality by Xxxxx’x either Moody's Investors ServiceServices, Inc. or Standard & Poor’s respectively, 's Corporation; proxxxxx xurther that no loss thereon or in money market funds having thereof shall affect the amounts payable to holders of Shares pursuant to Section 3.06(b). Any interest and other income resulting from such investment shall become a rating in the highest investment granted by a recognized credit rating agency at the time part of the investmentExchange Fund, and any amounts in excess of the amounts payable under Section 3.06(b) shall be promptly paid to Parent. Any net profit resulting fromMerger Subsidiary shall, or interest or income produced byand Parent shall cause Merger Subsidiary to, such amounts on deposit with promptly replenish the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares Fund to the Exchange Agent) for use in such exchangeextent of any investment losses.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent reasonably acceptable to the Company (the “Exchange Agent”) reasonably acceptable to the Company 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”)) in each case for the aggregate Merger Consideration payable to each holder of shares of Company Stock. Promptly after Prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing Shares; provided, however, that the portion of the aggregate Merger Consideration allocable to the dissenting shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”). For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than required to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration be deposited with the Exchange Agent shall, pending its disbursement to such holders, be invested by the Agent. The Exchange Agent as directed shall invest the funds provided by Parent in the manner specified by Parent; provided that such investments , and interest payable thereon shall be in obligations solely for the account of Parent or guaranteed by the United States Surviving Corporation. Not later than two Business Days after the date of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time consummation of the investment. Any net profit resulting fromMerger and the other transactions contemplated hereby (the “Closing;” such date, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable to Parent or as Parent otherwise directs. Promptly after the Effective Time“Closing Date”), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time (other than treasury shares or shares held by any Subsidiary of the Company or by Parent), 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 such exchange. All documents to be sent to the holders of Company Stock by the Exchange Agent shall be in a form reasonably agreed to by Parent and the Company.
Appears in 1 contract
Surrender and Payment. (a) 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 of Company Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after At or prior to the Effective Time, Parent shall deposit in cash with make available to the Exchange Agent the Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Shares. For the avoidance of doubt, such amounts on deposit with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, 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 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 30 days or guaranteed by the United States of America, 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 Xxxxx’x Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, by such amounts on deposit with the Exchange Agent investments will be payable to Parent the Surviving Corporation or Parent, as Parent otherwise directs. Promptly after the Effective TimeTime (but not later than three Business Days thereafter), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
Appears in 1 contract
Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent agent, reasonably acceptable satisfactory to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Common Stock (the “Certificates”) or (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”). Promptly after Prior to the Effective Time, Parent shall deposit in cash or cause to be deposited with the Exchange Agent in a separate fund established for the benefit of the holders of shares of Company Common Stock, cash sufficient to pay the aggregate Merger Consideration required to be paid in respect of for all of the Certificates and at the Uncertificated Shares representing shares of Company Stock entitled to payment pursuant to Section 2.02(a) (collectively, the “Aggregate Merger Consideration”)Effective Time. For the avoidance of doubt, such amounts on deposit Any cash deposited with the Exchange Agent shall not be used for any purpose other than to fund payments due pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement to such holders, as set forth in this Article 2 and shall be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in Parent or the Surviving Corporation in: (A) direct obligations of, or obligations the principal of or and interest on which are unconditionally guaranteed by by, the United States of AmericaAmerica with a remaining Table of Contents term at the time of acquisition thereof not in excess of 90 days, (B) money market accounts or certificates of deposit maturing within 90 days of the acquisition thereof and issued by a bank or trust company organized under the laws of the United States of America or a State thereof having a combined capital surplus in excess of $500,000,000 (a “United States Bank”), (C) commercial paper obligations rated A-1 or P-1 or better issued by a domestic corporation and given a rating of no lower than A1 by Standard & Poor’s Corporation and P1 by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having with a rating in the highest investment granted by a recognized credit rating agency remaining term at the time of the investmentacquisition thereof not in excess of 90 days or (D) demand deposits with any United States Bank. Any net profit resulting from, or The earnings and interest or income produced by, such amounts on deposit with the Exchange Agent will thereon shall be payable paid to Parent or as Parent otherwise directs. Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of record of shares of Company Common Stock at the Effective Time Time, a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.
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Surrender and Payment. (a) Prior to the Effective Time, Parent shall appoint an agent a commercial bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) and enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to the Company (the “Exchange Agent Agreement”) for the purpose of exchanging (i) Certificates or (ii) Uncertificated Shares for the Merger Consideration (i) certificates representing payable in respect of the shares of Company Stock (the “Certificates”) or (ii) uncertificated shares Common Stock. As of Company Stock (the “Uncertificated Shares”). Promptly after the Effective Time, Parent shall deposit in cash with the Exchange Agent Agent, for the Merger Consideration to be paid in respect of all benefit of the Certificates and the Uncertificated Shares representing holders of shares of Company Common Stock, for exchange in accordance with this Section 2.04 through the Exchange Agent, (x) certificates (or evidence of shares in book-entry form) representing the shares of Parent Common Stock entitled to payment issuable pursuant to Section 2.02(aSection 2.03(a)(i) in exchange for outstanding shares of Company Common Stock and (collectively, y) cash sufficient to pay the “Aggregate Merger Consideration”aggregate Cash Consideration payable pursuant to Section 2.03(a)(i). For the avoidance of doubtParent agrees to make available, such amounts on deposit with directly or indirectly, to the Exchange Agent shall not be used for from time to time as needed additional cash and/or shares of Parent Common Stock sufficient to pay any purpose dividends or other than distributions to fund payments due which such holders are entitled pursuant to Section 2.02(a). The Aggregate Merger Consideration deposited with the Exchange Agent shall, pending its disbursement Section 2.04(f) and cash in lieu of any fractional share of Parent Common Stock to which such holders, be invested by the Exchange Agent as directed by Parent; provided that such investments shall be in obligations of or guaranteed by the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Xxxxx’x Investors Service, Inc. or Standard & Poor’s respectively, or in money market funds having a rating in the highest investment granted by a recognized credit rating agency at the time of the investment. Any net profit resulting from, or interest or income produced by, such amounts on deposit with the Exchange Agent will be payable holder is entitled pursuant to Parent or as Parent otherwise directsSection 2.08. Promptly after the Effective TimeTime (and in no event more than two (2) Business Days following the Closing Date), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall be in a form reasonably acceptable to the Company and substantially finalized prior to the Effective Time and which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange. All certificates (or evidence of shares in book-entry form) and cash deposited with the Exchange Agent pursuant to this Section 2.04 shall be referred to in this Agreement as the “Exchange Fund.” Parent shall cause the Exchange Agent to deliver the Merger Consideration contemplated to be issued or paid pursuant to this Article II out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent; provided that such cash shall only be invested in the manner provided in the Exchange Agent Agreement; and provided, further, that no such investment or losses thereon shall affect the Merger Consideration payable to holders of Company Common Stock entitled to receive such consideration or cash in lieu of fractional interests; provided, further, that to the extent necessary to pay the Merger Consideration, Parent shall promptly cause to be provided additional funds to the Exchange Agent for the benefit of holders of Company Common Stock entitled to receive such consideration in the amount of any such losses. Any interest and other income resulting from such investments shall be the property of, and paid to, Parent upon termination of the Exchange Fund.
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