M&A Boot Camp booklet 2023 - Flipbook - Page 100
(b) Loss of Dissenting Share Status. Notwithstanding the provisions of Section 1.8(a), if any holder of shares of Company Capital
Stock who demands appraisal of such holder’s shares under the DGCL shall effectively withdraw or lose (through the failure to perfect or
otherwise) such holder’s right to appraisal, then as of the Closing or the occurrence of such event, whichever later occurs, such holder’s
shares of Company Capital Stock shall automatically be converted into the right to receive the applicable Merger Consideration, without
interest thereon, promptly following the surrender of the certificate or certificates representing such shares of Company Capital Stock.
(c) Notice of Dissenting Shares. The Company shall give Parent: (i) prompt notice of any demands for appraisal of shares of Company
Capital Stock received by the Company, withdrawals of any demands, and any other instruments served pursuant to the DGCL and received
by the Company; and (ii) the opportunity to direct all negotiations and proceedings with respect to any such demands for appraisal. The
Company shall not, except with the prior written consent of Parent, make any payment with respect to any demands for appraisal of shares of
Company Capital Stock or offer to settle any such demands other than by operation of law or pursuant to a final order of a court of
competent jurisdiction.
1.9 Exchange of Certificates.
(a) Payment Agent. On or prior to the Closing Date, Parent shall select a reputable bank or trust company to act as payment agent in
the Merger (the “Payment Agent”). At the Effective Time, Parent shall deposit with the Payment Agent cash sufficient to pay the cash
consideration payable pursuant to Section 1.5 (excluding the Escrow Amount and the Stockholders’ Agent Escrow Amount). The cash
amount so deposited with the Payment Agent is referred to as the “Payment Fund.” The Payment Agent will invest the funds included in the
Payment Fund in the manner directed by Parent. Any interest or other income resulting from the investment of such funds shall be the
property of, and will be paid to, Parent.
(b) Letter of Transmittal – Capital Stock. Promptly after the Effective Time, but in no event later than five days thereafter, Parent shall
cause the Payment Agent to mail to each record holder of Company Capital Stock immediately prior to the Effective Time: (i) a letter of
transmittal containing such provisions as Parent or the Payment Agent may, subject to reasonable approval of the Stockholders’ Agent,
specify (including a provision confirming that delivery of Company Stock Certificates (as defined in Section 1.9(d)) shall be effected, and risk
of loss and title to Company Stock Certificates shall pass, only upon delivery of such Company Stock Certificates to the Payment Agent, and
a provision whereby such holder agrees to be bound by the provisions of Sections 1.9, 9 and 10.1) (a “Letter of Transmittal”); and
(ii) instructions for use in effecting the exchange of Company Stock Certificates for the Merger Consideration, if any, payable with respect to
such Company Capital Stock. Upon the surrender to the Payment Agent of a Company Stock Certificate (or an affidavit of lost stock
certificate as described in Section 1.9(e)), together with a duly executed Letter of Transmittal and such other documents as Parent or the
Payment Agent may reasonably request, the holder of such Company Stock Certificate shall be entitled to receive in exchange therefor cash
in an amount equal to the Merger Consideration, if any, which such holder has the right to receive pursuant to Section 1.5, and the Company
Stock Certificate so surrendered shall forthwith be canceled. From and after the Effective Time, each Company Stock Certificate which prior
to the Effective Time represented shares of Company Capital Stock shall be deemed to represent only the right to receive the Merger
Consideration, if any, payable with respect to such shares, and the holder of each such Company Stock Certificate shall cease to have any
rights with respect to the shares of Company Capital Stock formerly represented thereby. The
10.