Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of: (i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation); (ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety; (iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition); or (iv) any liquidation, dissolution or termination of the Company other than as a result of or after the occurrence of a Termination Event, (any such event, a "Reorganization Event"), [each Purchase Contract shall become, without the consent of the Holder of the related Security, a contract to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event (collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events. (2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash Merger"), then a Holder of a Security may settle his Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicable, on or after the date of such Cash Merger, at the applicable Settlement Rate. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a notice of Early Settlement pursuant to this Section 5.04(b)(2), the date on which such Early Settlement shall occur (the "Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40]
Appears in 1 contract
Sources: Purchase Contract Agreement (Williams Companies Inc)
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of:
of (i) any dividend or distribution by the Company to all holders of Common Stock of evidences of its indebtedness or other assets (excluding (i) dividends or distributions referred to in Section 6.1(a)(i), shares issued in a reclassification referred to in Section 6.1(a)(iv) and Permitted Dividends), (ii) any consolidation or merger of the Company, or any surviving entity or subsequent surviving entity of the Company (a "Company Successor"), with or into another Person entity (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are is not exchanged for cash, securities or other property of the Company or another corporationentity);
, (iiiii) any sale, transfer, lease or conveyance to another Person entity of the property of the Company or any Company Successor as an entirety or substantially as an entirety;
, (iiiiv) any statutory share exchange of securities of the Company or any Company Successor with another Person entity (other than in connection with a merger or acquisition); or
) or (ivv) any liquidation, dissolution or termination winding up of the Company other than as a result of or after the occurrence of a Termination Event, any Company Successor (any such eventevent described in clause (i), (ii), (iii), (iv) or (v), a "Reorganization Event"), [each Purchase the Exchange Rate shall be adjusted so that on the Exchange Date Purchaser shall receive, in lieu of, or (in the case of an Adjustment Event described in this Section 6.2(i)) in addition to, the Contract Shares, cash in an amount equal to the product of (x) the Firm Share Base Amount plus the Additional Share Base Amount (if any) and (y)(i) if the Reference Market Price is greater than or equal to the Threshold Appreciation Price, o.xx multiplied by the Transaction Value, (ii) if the Reference Market Price is less than the Threshold Appreciation Price but is equal to or greater than the Floor Price, the product of (A) the Floor Price divided by the Reference Market Price multiplied by (B) the Transaction Value and (iii) if the Reference Market Price is less than the Floor Price, the Transaction Value. Following an Adjustment Event, the Reference Market Price, as such term is used herein, shall become, without be deemed to equal (A) the consent Reference Market Price of the Holder of Common Stock, as adjusted pursuant to Section 6.1(e); plus (B) the related SecurityTransaction Value. Notwithstanding the foregoing, a contract to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of if any Marketable Securities are received in such Reorganization Event. The , Seller may, at its option, in lieu of delivering cash as described above, deliver an equivalent amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of the Reorganization Event shall be (based on the value as of such settlement date determined in accordance with clause (z) of the hypothetical amount following paragraph) of securitiesMarketable Securities, but not exceeding, as a percentage of the total consideration required to be delivered, the percentage of the total Transaction Value attributable to such Marketable Securities; provided, however, that (i) if such option is exercised, the Seller shall deliver Marketable Securities in respect of all, but not less than all, cash and other property amounts that would have been otherwise be deliverable in respect of Marketable Securities received upon consummation in an Adjustment Event, (ii) the Seller may not exercise such option if the Seller has elected to deliver cash in lieu of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event (collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of electionStock, if any, as deliverable upon the Exchange Date or if such Marketable Securities have not yet been delivered to the kind holders entitled thereto following such Adjustment Event or any record date with respect thereto, and (iii) subject to clause (ii) of this proviso, the Seller must exercise such option if the Seller does not elect to deliver cash in lieu of Common Stock, if any, deliverable upon the Exchange Date. If the Seller elects to deliver Marketable Securities, each holder of a TIMES will be responsible for the payment of any and all brokerage and other transaction costs upon the sale of such Marketable Securities. If, following any Adjustment Event, any Marketable Security ceases to qualify as a Marketable Security, then (x) the Seller may no longer elect to deliver such Marketable Security in lieu of an equivalent amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (Cy) in the case of any other property that comprises all or part notwithstanding clause (ii) of the Exchange Propertydefinition of Transaction Value, based on the Transaction Value of such Marketable Security shall mean the fair market value of such propertyMarketable Security on the date such security ceases to qualify as a Marketable Security, as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization EventsSeller.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash Merger"), then a Holder of a Security may settle his Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicable, on or after the date of such Cash Merger, at the applicable Settlement Rate. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a notice of Early Settlement pursuant to this Section 5.04(b)(2), the date on which such Early Settlement shall occur (the "Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40]
Appears in 1 contract
Sources: Purchase Agreement (Mandatory Common Exchange Trust)
Adjustment for Consolidation, Merger or Other Reorganization Event. (1a) In the event of:
of (i) any consolidation consolidation, amalgamation or merger of the Company, or any surviving entity or subsequent surviving entity of the Company (a "Company Successor"), with or into another Person entity (other than a consolidation, amalgamation or merger or consolidation in which the Company is the continuing corporation and in which the shares of Class A Common Stock outstanding immediately prior to the consolidation, amalgamation or merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);
, (ii) any sale, transfer, lease or conveyance to another Person corporation of the property of the Company or any Company Successor as an entirety or substantially as an entirety;
, (iiiiii)(x) any statutory share exchange of securities of the Company or any Company Successor with another Person corporation or (y) any sale of all or substantially all of the outstanding equity securities of the Company or any Successor Company, including pursuant to any plan of arrangement or similar scheme with the Company's shareholders under any applicable law, rule or regulation or order of any court or governmental authority (in the case of each of the preceding clauses (x) and (y), other than in connection with a consolidation, amalgamation or merger referred to in clause (i) immediately above), or acquisition); or
(iv) any liquidation, dissolution or termination winding up of the Company other than as a result of or after the occurrence of a Termination Event, any Company Successor (any such eventevent described in clause (i), (ii), (iii) or (iv), a "Reorganization Event"), [each Purchase Contract Seller shall becomedeliver on the Exchange Date, without the consent in lieu of the Holder of the related Security, a contract to purchase only the kind of securitiesContract Shares, cash and other property receivable upon consummation of such in an amount (the "Basic Reorganization Event by a holder of Common Stock immediately Amount") equal to the Dilution Adjustment (or successive Dilution Adjustments), if any, that have been applied to the Exchange Rate pursuant to Section 6.1 at or prior to the closing date time of such Reorganization Event, multiplied by the product of (x) the Firm Share Base Amount plus the Additional Share Base Amount and (y)(i) if the Transaction Value is less than the Appreciation Threshold Price but equal to or greater than the Initial Price, the Initial Price, (ii) if the Transaction Value is equal to or greater than the Appreciation Threshold Price, _____ multiplied by the Transaction Value, and (iii) if the Transaction Value is less than the Initial Price, the Transaction Value. The amount Notwithstanding the foregoing, if the consideration received by the holders of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of Class A Common Stock in the Reorganization Event shall be (the "Merger Consideration") includes any Marketable Securities, Seller may, at its option, in lieu of delivering cash as described above, deliver an equivalent amount (based on the value as determined in accordance with clause (z) of the definition of Transaction Value) of such settlement date of the hypothetical amount of securitiesMarketable Securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event (collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is but not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was madeexceeding, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more percentage of the total consideration paid required to be delivered, the Company's shareholders percentage of the total Transaction Value attributable to such Marketable Securities.
(b) Notwithstanding Section 6.2(a), if at least 30% of the Merger Consideration in any Reorganization Event consists of cash or cash equivalents (a "Cash Merger"), then a Holder Seller shall be required (i) within five Business Days after Seller receives the Merger Consideration, to deliver the Accelerated Portion to Purchaser, provided that to the extent the Accelerated Portion consists of a Security may settle his Purchase Contract for property other than cash or cash equivalents, Seller may, at its option, deliver, in lieu of such other property, cash in an amount equal to the Value of such other property; and (ii) on the Exchange Date, to deliver to Purchaser the number of Marketable Securities equal to the product of (x) the sum of the Firm Share Base Amount and the Additional Share Base Amount and (y) the Exchange Rate, adjusted as described in the next sentence, and the provisions of Section 5.02(b)(i2.3(c) shall apply mutatis mutandis to such Marketable Securities, provided that Seller may exercise the Cash Settlement Alternative in respect of such Marketable Securities, in which case Section 2.3(d) shall apply to such election mutatis mutandis to such Marketable Securities. For purposes of calculating such Exchange Rate, (A) the Initial Price and Appreciation Threshold Price shall each be adjusted by multiplying the Initial Price or 5.02(e)(i) hereofAppreciation Threshold Price, as applicable, on or after as then in effect, by a fraction, the date numerator of such Cash Merger, at which is the applicable Settlement Rate. Within five Business Days Value of a share of the completion of a Cash Merger, Marketable Securities included in the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a notice of Early Settlement pursuant to this Section 5.04(b)(2), the date Merger Consideration on which such Early Settlement shall occur (the "Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to closed, and the Holders denominator of which shall be the aggregate Transaction Value; and (B) the Exchange Rate shall be adjusted by multiplying the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2Exchange Rate (computed on the basis of the adjusted Initial Price and Appreciation Threshold Price and the Average Market Price of the Marketable Securities) by a fraction, the numerator of which is the aggregate Value of the Marketable Securities included in integral multiples the Merger Consideration received in exchange for a single share of [40]Class A Common Stock, and the denominator of which is the Value of a share of the Marketable Securities included in the Merger Consideration on the date the Cash Merger is closed.
Appears in 1 contract
Sources: Purchase Agreement (Eleventh Automatic Common Exchange Security Trust)
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In ------------------------------------------------------------------ the event of:
of (i) any consolidation or merger of the Company Company, with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are is not exchanged for cash, securities or other property of the Company or another corporation);
, (ii) any sale, transfertrans fer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety;
, (iii) any statutory share exchange of securities of the Company with another Person (other than in connection with a merger or acquisition); or
) or (iv) any liquidation, dissolution or termination winding up of the Company other than as a result of or after the occurrence of a Termination Event, Event (any such event, a "Reorganization Event"), [the Settlement Rate will be adjusted to provide that each Holder of Securities will receive on the Final Settlement Date with respect to each Purchase Contract shall becomeforming a part thereof, without the consent of the Holder of the related Security, a contract to purchase only the kind and amount of securities, cash and other property receivable upon consummation of such Reorganization Event by (without any interest thereon, and without any right to dividends or distributions thereon which have a holder of Common Stock immediately record date that is prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation Final Settlement Date) by a Holder of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a issuable on account of each Purchase Contract if the Final Settlement Date had occurred immediately prior to the closing date of the such Reorganization Event (collectivelyEvent, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that assuming such holder Holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent constituent Person"), or an Affiliate of a Constituent constituent Person (to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates Affiliates), and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, liquidation or dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that the Holders of each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b)506. Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04Section. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash Merger"), then a Holder of a Security may settle his Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicable, on or after the date of such Cash Merger, at the applicable Settlement Rate. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a notice of Early Settlement pursuant to this Section 5.04(b)(2), the date on which such Early Settlement shall occur (the "Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40]
Appears in 1 contract
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition); or
(iv) any liquidation, dissolution or termination of the Company other than as a result of or after the occurrence of a Termination EventEvent (any event described in clauses (i), (any such eventii), (iii) and (iv), a "Reorganization EventREORGANIZATION EVENT"), [each Purchase Contract shall become, without the consent of the Holder of the related Security, a contract to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event ,
(collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 1) the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security Unit shall have the 57 rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash MergerCASH MERGER"), then a Holder of a Security Unit may settle his ("CASH MERGER EARLY SETTLEMENT") its Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereofContract, as applicable, on or after upon the date of such Cash Mergerconditions set forth below, at the applicable Settlement RateRate in effect immediately prior to the closing of the Cash Merger; provided that (i) the Cash Merger Early Settlement Date (as defined below) is no later than the fifth Business Day immediately preceding the Purchase Contract Settlement Date and (ii) no Cash Merger Early Settlement will be permitted pursuant to this Section 5.04(b)(2) unless, at the time such Cash Merger Early Settlement is effected, there is an effective Registration Statement with respect to any securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (A) have in effect a Registration Statement covering any securities to be delivered in respect of the Purchase Contracts being settled and (B) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Cash Merger Early Settlement. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities Units of such completion of a Cash Merger, which shall specify the deadline for submitting a the notice of Early Settlement to settle early in cash pursuant to this Section 5.04(b)(2), the date on which such Cash Merger Early Settlement shall occur (which date shall be 10 days after the date of such written notice by the Company, but which shall in no event be later than the fifth Business Day immediately preceding the Purchase Contract Settlement Date) (the "Early Settlement DateCASH MERGER EARLY SETTLEMENT DATE"), the applicable Settlement Rate and the amount (per share of common stockCommon Stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value Corporate Units Holders and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Treasury Units Holders may only effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40]20 Corporate Units or Treasury Units, as the case may be. If the Treasury Portfolio has replaced the Senior Notes as a component of the Corporate Units, Corporate Units Holders may only effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(2) in multiples of 80,000 Corporate Units. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Cash Merger Early Settlement pursuant to this Section 5.04(b)(2). In order to exercise the right to effect Cash Merger Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver, no later than 5:00 p.m. (New York City time) on the third Business Day immediately preceding the Cash Merger Early Settlement Date, such Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment (payable to the Company in immediately available funds) in an amount equal to the product of (A) the Stated Amount times (B) the number of Purchase Contracts with respect to which the Holder has elected to effect Cash Merger Early Settlement. If a Holder properly effects an effective Cash Merger Early Settlement in accordance with the provisions of this Section 5.04(b)(2), the Company will deliver (or will cause the Collateral Agent to deliver) to the Holder on the Cash Merger Early Settlement Date:
(i) the kind and amount of securities, cash and other property receivable upon such Cash Merger by a Holder of the number of shares of Common Stock issuable on account of each Purchase Contract if the Purchase Contract Settlement Date had occurred immediately prior to such Cash Merger (based on the Settlement Rate in effect at such time), assuming such Holder of Common Stock is not a Constituent Person or an Affiliate of a Constituent Person to the extent such Cash Merger provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Cash Merger (provided that if the kind or amount of securities, cash and other property receivable upon such Cash Merger is not the same for each non-electing share, then for the purpose of this Section 5.04(b)(2), the kind and amount of securities, cash and other property receivable upon such Cash Merger by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). For the avoidance of doubt, for the purposes of determining the Adjusted Applicable Market Value (in connection with determining the appropriate Settlement Rate to be applied in the foregoing sentence), the date of the closing of the Cash Merger shall be deemed to be the Purchase Contract Settlement Date;
(ii) the Senior Notes, the Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, related to the Purchase Contracts with respect to which the Holder is effecting a Cash Merger Early Settlement; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(b)(2).
Appears in 1 contract
Sources: Purchase Contract Agreement (Hartford Financial Services Group Inc/De)
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition); or
(iv) any liquidation, dissolution or termination of the Company other than as a result of or after the occurrence of a Termination Event, Event (any such event, a "Reorganization Event"), [each Purchase Contract shall become, without the consent of the Holder of the related Security, a contract to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event ,
(collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 1) the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash Merger"), then a Holder of a Security may settle his ("Cash Merger Early Settlement") its Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicablecash, on or after the date of such Cash Merger, at the applicable Settlement Rate; provided that (i) the Cash Merger Early Settlement Date (as defined below) is no later than the fourth Business Day immediately preceding the Purchase Contract Settlement Date and (ii) no Cash Merger Early Settlement will be permitted pursuant to this Section 5.04(b)(2) unless, at the time such Cash Merger Early Settlement is effected, there is an effective Registration Statement with respect to any securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its best efforts to (A) have in effect a Registration Statement covering any securities to be delivered in respect of the Purchase Contracts being settled and (B) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Cash Merger Early Settlement. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a the notice of Early Settlement to settle early in cash pursuant to this Section 5.04(b)(2), the date on which such Cash Merger Early Settlement shall occur (which date shall be between 20 and 30 Business Days after the date of such written notice by the Company, but which shall in no event be later than the fourth Business Day immediately preceding the Purchase Contract Settlement Date) (the "Cash Merger Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40].
Appears in 1 contract
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition); or
(iv) any liquidation, dissolution or termination of the Company other than as a result of or after the occurrence of a Termination EventEvent (any event described in clauses (i), (any such eventii), (iii) and (iv), a "Reorganization EventREORGANIZATION EVENT"), [each Purchase Contract Warrant shall become, without the consent of the Holder of the related SecurityUnit representing such Warrant, a contract an agreement to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract Warrant after the consummation of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract Warrant immediately prior to the closing date of the Reorganization Event (collectively, the "Exchange PropertyEXCHANGE PROPERTY"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent PersonCONSTITUENT PERSON"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided that if the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect of which such rights of election shall not have been exercised ("nonNON-electing shareELECTING SHARE"), then for the purpose of this Section the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract Warrant shall be (1) in the case of settlement on the Purchase Contract Warrant Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Adjusted Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) time and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B2) in the case of any cash Early Settlement, determined in accordance with the procedures described under Section 5.07 using the Settlement Rate that comprises all or part of results in the Exchange Property, based on the minimum amount of Exchange Property being delivered under such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization EventsWarrant.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash Merger"), then a Holder of a Security may settle his Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicable, on or after the date of such Cash Merger, at the applicable Settlement Rate. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities of such completion of a Cash Merger, which shall specify the deadline for submitting a notice of Early Settlement pursuant to this Section 5.04(b)(2), the date on which such Early Settlement shall occur (the "Early Settlement Date"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Holders may only effect Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of [40]
Appears in 1 contract
Sources: Warrant Agreement (Chubb Corp)
Adjustment for Consolidation, Merger or Other Reorganization Event. (1) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing corporation and in which the shares of Common Stock outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of the Company or another corporation);
(ii) any sale, transfer, lease or conveyance to another Person of the property of the Company as an entirety or substantially as an entirety;
(iii) any statutory share exchange of the Company with another Person (other than in connection with a merger or acquisition); or
(iv) any liquidation, dissolution or termination of the Company other than as a result of or after the occurrence of a Termination Event, Event (any such event, a "Reorganization EventREORGANIZATION EVENT"), [the Settlement Rate will be adjusted to provide that each Holder of Units will receive on the Purchase Contract Settlement Date with respect to each Purchase Contract shall becomeforming a part thereof, without the consent of the Holder of the related Security, a contract to purchase only the kind of securities, cash and other property receivable upon consummation of such Reorganization Event by a holder of Common Stock immediately prior to the closing date of such Reorganization Event. The amount of such securities, cash and other property receivable upon settlement of each such Purchase Contract after the consummation of the Reorganization Event shall be based on the value as of such settlement date of the hypothetical amount of securities, cash and other property that would have been received upon consummation of the Reorganization Event in exchange for the maximum number of shares of Common Stock deliverable under a Purchase Contract immediately prior to the closing date of the Reorganization Event (collectively, the "Exchange Property"). In determining the kind and amount of the Exchange Property pursuant to the foregoing, it will be assumed that such holder of Common Stock is not a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a "Constituent Person"), or an Affiliate of a Constituent Person to the extent such Reorganization Event provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise his rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Reorganization Event (provided without any interest thereon, and without any right to dividends or distribution thereon which have a record date that if is prior to the kind or amount Purchase Contract Settlement Date) by a Holder of securities, cash and other property receivable upon such Reorganization Event is not the same for each share number of shares of Common Stock held immediately prior to such Reorganization Event by other than a Constituent Person or an Affiliate thereof and in respect issuable on account of which such rights of election shall not have been exercised each Purchase Contract if the
("non-electing share"), then for the purpose of this Section 1) the kind and amount of securities, cash and other property receivable upon such Reorganization Event by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The actual amount of Exchange Property receivable upon settlement of each Purchase Contract shall be in the case of settlement on the Purchase Contract Settlement Date or Early Settlement pursuant to Section 5.04(b)(2), a variable amount based upon the applicable Settlement Rate and the Applicable Market Value of the Exchange Property at such time. For purposes of this Section 5.04(b)(1) and Section 5.04(b)(2), the term "Applicable Market Value" shall be deemed to refer to the "Applicable Market Value" of the Exchange Property, and such value shall be determined (A) with respect to any publicly traded securities that comprise all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose, and the term "Closing Price" shall be deemed to refer to the closing sale price, last quoted bid price or mid-point of the last bid and ask prices, as the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. In the event of such a Reorganization Event, the Person formed by such consolidation, merger or exchange or the Person which acquires the assets of the Company or, in the event of a liquidation, dissolution or termination of the Company, the Company or a liquidating trust created in connection therewith, shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Security Unit shall have the rights provided by this Section 5.04(b). Such supplemental agreement shall provide for adjustments which, for events subsequent to the effective date of such supplemental agreement, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 5.04. The above provisions of this Section 5.04 shall similarly apply to successive Reorganization Events.
(2) In the event of a consolidation or merger of the Company with or into another Person, any merger of another Person into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock) in which 30% or more of the total consideration paid to the Company's shareholders consists of cash or cash equivalents (a "Cash MergerCASH MERGER"), then a Holder of a Security Unit may settle his ("CASH MERGER EARLY SETTLEMENT") its Purchase Contract for cash as described in Section 5.02(b)(i) or 5.02(e)(i) hereof, as applicablecash, on or after the date of such Cash Merger, at the applicable Settlement RateRate in effect immediately prior to the closing of the Cash Merger; provided that (i) the Cash Merger Early Settlement Date (as defined below) is no later than the fifth Business Day immediately preceding the Purchase Contract Settlement Date and (ii) no Cash Merger Early Settlement will be permitted pursuant to this Section 5.04(b)(2) unless, at the time such Cash Merger Early Settlement is effected, there is an effective Registration Statement with respect to any securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (A) have in effect a Registration Statement covering any securities to be delivered in respect of the Purchase Contracts being settled and (B) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Cash Merger Early Settlement. Within five Business Days of the completion of a Cash Merger, the Company shall provide written notice to Holders of Securities Units of such completion of a Cash Merger, which shall specify the deadline for submitting a the notice of Early Settlement to settle early in cash pursuant to this Section 5.04(b)(2), the date on which such Cash Merger Early Settlement shall occur (which date shall be 10 days after the date of such written notice by the Company, but which shall in no event be later than the fifth Business Day immediately preceding the Purchase Contract Settlement Date) (the "Early Settlement DateCASH MERGER EARLY SETTLEMENT DATE"), the applicable Settlement Rate and the amount (per share of common stock) of cash, securities and other consideration receivable by the Holder upon settlement. For the purposes of this Section 5.04(b)(2), the sixteenth Business Day after the closing of the merger or consolidation shall be deemed to be the Purchase Contract Settlement Date for the purpose of determining the Applicable Market Value Corporate Units Holders and the deadline for submitting the notice to settle early and the related cash payment shall be 5:00 p.m. (New York City time) on the tenth Business Day after the date the notice relating to a Cash Merger is provided to the Holders by the Company. Growth PACS Treasury Units Holders may only effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(2) in integral multiples of 20 Corporate Units or Treasury Units, as the case may be. If the Treasury Portfolio has replaced the Senior Notes as a component of the Corporate Units as a result of a Special Event Redemption or a Successful Remarketing of the Senior Notes, Corporate Units Holders may only effect Cash Merger Early Settlement pursuant to this Section 5.04(b)(2) in multiples of [40]____] Corporate Units. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Cash Merger Early Settlement pursuant to this Section 5.04(b)(2). In order to exercise the right to effect Cash Merger Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver, no later than 5:00 p.m. (New York City time) on the third Business Day immediately preceding the Cash Merger Early Settlement Date, such Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment (payable to the Company in immediately available funds) in an amount equal to:
(i) the product of (A) the Stated Amount times (B) the number of Purchase Contracts with respect to which the Holder has elected to effect Cash Merger Early Settlement, plus
(ii) if such delivery is made with respect to any Purchase Contracts during the period from the close of business on any Record Date next preceding any Payment Date to the opening of business on such Payment Date, an amount equal to the Contract Adjustment Payments payable on such Payment Date with respect to such Purchase Contracts. If a Holder properly effects an effective Cash Merger Early Settlement in accordance with the provisions of this Section 5.04(b)(2), the Company will deliver (or will cause the Collateral Agent to deliver) to the Holder on the Cash Merger Early Settlement Date:
(i) the kind and amount of securities, cash and other property receivable upon such Cash Merger by a Holder of the number of shares of Common Stock issuable on account of each Purchase Contract if the Purchase Contract Settlement Date had occurred immediately prior to such Cash Merger (based on the Settlement Rate in effect at such time), assuming such Holder of Common Stock is not a Constituent Person or an Affiliate of a Constituent Person to the extent such Cash Merger provides for different treatment of Common Stock held by Affiliates of the Company and non-affiliates and such Holder failed to exercise its rights of election, if any, as to the kind or amount of securities, cash and other property receivable upon such Cash Merger (provided that if the kind or amount of securities, cash and other property receivable upon such Cash Merger is not the same for each non-electing share, then for the purpose of this Section 5.04(b)(2), the kind and amount of securities, cash and other property receivable upon such Cash Merger by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). For the avoidance of doubt, for the purposes of determining the Applicable Market Value (in connection with determining the appropriate Settlement Rate to be applied in the foregoing sentence), the date of the closing of the Cash Merger shall be deemed to be the Purchase Contract Settlement Date;
(ii) the Senior Notes, the Applicable Ownership Interests in the Treasury Portfolio or Treasury Securities, as the case may be, related to the Purchase Contracts with respect to which the Holder is effecting a Cash Merger Early Settlement; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(b)(2).
Appears in 1 contract
Sources: Purchase Contract Agreement (Hartford Financial Services Group Inc/De)