Procedure for Exchange. (i) To exercise the Exchange Right attaching to any Note, the holder thereof must complete, execute and deposit at his own expense during normal business hours during the Exchange Period at the specified office of any Exchange Agent, a notice of exchange (an “Exchange Notice”) in the form (for the time being current) obtainable from the specified office of any Exchange Agent, together with the Certificate evidencing such Note (and any certificates and other documents as may be required by applicable law) and any amount to be paid by the Noteholder pursuant to this Condition 6(b)(i). An Exchange Notice once delivered shall be irrevocable. Exchange Rights may be exercised in respect of whole Notes only. Subject to Condition 6(m), the Exchange Date in respect of a Note (the “Exchange Date”) will be the Exchange Business Day in the location of the relevant Exchange Agent immediately following the date of the surrender of the Certificate in respect of such Note, due delivery of the relevant Exchange Notice and, if applicable, the making of any payment to be made and the giving of any indemnity to be given under these Conditions in connection with the exercise of such Exchange Right or, in the case of an election by the Trustee to exercise the Exchange Rights pursuant to Condition 6(m), the relevant date fixed for redemption. A Noteholder or the Trustee exercising Exchange Rights must pay (in the case of the Trustee, by way of deduction from the proceeds pursuant to Condition 6(m)) any taxes and capital, stamp, issue, registration, documentary, transfer or other duties (including penalties) arising on exchange and/or on the transfer, delivery or other disposition of Exchange Property arising or exercise of Exchange Rights (“Stamp Taxes”) or provide an indemnity in respect thereof in such form as the Issuer may reasonably require, other than or in respect of any Stamp Taxes payable or imposed in the Republic of the Philippines or any other jurisdiction in which the register in respect of any securities or other property comprising Exchange Property is located or in which any property comprising Exchange Property is situated which shall be payable by the Issuer. If the Issuer shall fail to pay any such Stamp Taxes, the relevant holder or, as the case may be, the Trustee shall be entitled to tender and pay the same. The Issuer, as a separate and independent stipulation, covenants to reimburse each such Noteholder or, as the case may be, the Trustee in respect of the payment of such Stamp Taxes and any penalties payable in respect thereof which shall be payable by the Issuer. Such Noteholder or, as the case may be, the Trustee must pay to the Exchange Agent (in the case of the Trustee, by way of deduction as aforesaid) all, if any, taxes arising by reference to any disposal or deemed disposal of a Note in connection with the exercise of Exchange Rights. (ii) As soon as practicable, and in any event not later than the Settlement Date: (1) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property which are deposited with a Depository System, the delivery of such PLDT Shares and/or other Relevant Securities, in each case, through and in accordance with the laws and regulations applicable to such Depository System, to the Securities Account designated for the purpose in the relevant Exchange Notice; (2) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property that are not deposited in a clearing system and are only available in physical form, that duly stamped forms of transfer and share certificates together with all other documents of title and evidence of ownership and all other documents necessary to transfer the PLDT Shares and/or other Relevant Securities to be delivered or transferred on exchange into such name (subject to any relevant provisions of the Trust Deed and the Agency Agreement) as the Noteholder shall direct, will be despatched by mail, free of charge (but uninsured and at the risk of the person entitled thereto) to such address as the Noteholder may request (as specified in the relevant Exchange Notice); (3) the Issuer and the Guarantor shall procure that such documents of title and evidence of ownership of any other Exchange Property to be delivered on exercise of Exchange Rights shall be despatched and the payment of any part of the Exchange Property comprising cash to be delivered on exercise of Exchange Rights (converted if necessary into U.S. dollars at the Prevailing Rate on the relevant Exchange Date) in accordance with directions given by the relevant Noteholder in the Exchange Notice. Notwithstanding the above, if the Exchange Property has changed in whole or in part as a result of acceptance of an Offer or as a result of the compulsory acquisition of any Relevant Securities, in each case as provided in Condition 7, then the time for such delivery shall be the longer of such period set out above and the day falling five Payment Business Days after the date on which the consideration is received by the Issuer under the terms of the Offer or, as the case may be, the day falling five Payment Business Days following the date on which the consideration pursuant to such compulsory acquisition is received by the Issuer. If, at any time when the transfer or delivery of any Exchange Property (other than cash) is required, such transfer or delivery would, as certified to the Trustee by two Directors of the Issuer or the Guarantor, be unlawful under the laws of any applicable jurisdiction or contrary to any official declaration, order, directive or regulation in any applicable jurisdiction, the Issuer will make a cash payment equal to the Cash Settlement Amount in respect of the relevant pro rata share of the Exchange Property. The Issuer (failing whom the Guarantor) will pay any such amount to the relevant Noteholders or, as the case may be, the Trustee, not later than 10 Payment Business Days after the relevant Settlement Date. Upon exercise of an Exchange Right, a holder exchanging Notes shall be required to represent and agree in the Exchange Notice that, at the time of signing and delivery of the Exchange Notice, it, or the person who has the beneficial interest in such Notes, is (a) acquiring the Exchange Property (initially comprising the Shares) to be delivered upon exchange of such Notes in an offshore transaction (as defined in Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”)) in accordance with Rule 903 or Rule 904 of Regulation S (“Regulation S”), (b) located outside the United States and is not a U.S. person (within the meaning of Regulation S), and (c) understands that the Exchange Property to be delivered upon exchange of such Notes has not been and will not be registered under the Securities Act and agrees that (i) if it, or such person, should offer, sell, pledge or otherwise transfer such Exchange Property, it, or such person, will do so only in compliance with the Securities Act and other applicable laws and only in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S, and in accordance with any applicable securities law of any State of the United States, and (ii) it and such person may not, subject to restrictions under U.S. securities laws and Philippine securities laws, deposit or cause to be deposited any of such Exchange Property in the form of Shares in any unrestricted depositary receipt facility for the Shares which is existing or may be created in the United States. No Exchange Property will be delivered to a holder of Notes or a beneficial interest therein unless such holder satisfies the foregoing conditions. If such holder is unable or otherwise fails to satisfy the foregoing conditions, such holder may transfer its Exchange Property or beneficial interest therein subject to compliance with the transfer restrictions set forth in the Agency Agreement. (iii) The relevant Noteholder (or the person designated in the relevant Exchange Notice) will be treated as the owner of the pro rata share of the Exchange Property deliverable upon exchange with effect from the Exchange Date and, in respect of such pro rata share of the Exchange Property, will be entitled to all rights, distributions or payments in respect of such pro rata share of the Exchange Property from the Exchange Date except voting rights. Accordingly, relevant adjustments to the Exchange Property shall be made in accordance with Conditions 6(c), (d), (e), (f), (g) and (j), as the case may be, such that further Relevant Securities or other property or assets (including cash) received pursuant to such adjustment shall be added to the Exchange Property (“Additional Exchange Property”). All Exchange Property deliverable upon exchange (including the Additional Exchange Property) shall be deliverable by the Issuer only on the Settlement Date. The “Effective Date” of a Rights Issue or any Sub-divisions, Consolidation or Redenomination or Relevant Event shall be the completion date of such event where cash, Securities and/or other property has been received by and/or credited into the relevant accounts of the person(s) entitled to receive the same. Any Exchange Property delivered on exercise of Exchange Rights shall not include any dividends or other income thereon or other distributions or rights in respect thereof, declared, paid or made by reference to a record date or other due date for the establishment of the relevant entitlement falling prior to the relevant Exchange Date. Exchange Property delivered or to be delivered upon exercise of Exchange Rights shall rank for and be entitled to all dividends, interest and other income, payments and distributions and rights thereon or in respect thereof declared, paid, made or granted by reference to a record date or other due date for the establishment of entitlement falling on or after the relevant Exchange Date. lf the record date or other due date for the establishment of the relevant entitlement for the payment of any dividend, interest or other income, payment or distribution or rights on or in respect of such Exchange Property falls on or after the Exchange Date but before the relevant Settlement Date (or any other date from which the relevant Noteholder is treated as the owner of, or entitled to all rights and entitlement to, such Exchange Property) with the effect that the relevant Noteholder is not entitled to such dividend, interest or other income, payment or distribution of rights, the Issuer will: (a) (in the case of dividends, interest or other income or distributions or rights to be paid in cash) pay, or procure the payment to, the exchanging Noteholder (or the person designated in the relevant Exchange Notice) in lieu of such dividend, interest or other income or distribution or rights, an amount equal to the amount actually received, with respect thereto, converted if necessary into U.S. dollars at the Prevailing Rate on the date of receipt thereof by the Issuer (the “Equivalent Amount”). The Issuer will pay the Equivalent Amount, or procure that it is paid, to the relevant Noteholder (or the person designated in the relevant Exchange Notice) by whichever is the later of five Payment Business Days after payment is made of the dividend, interest or other income, payment or distribution or rights and the relevant Settlement Date; and
Appears in 1 contract
Sources: Subscription Agreement (First Pacific Company LTD /Fi)
Procedure for Exchange. (i) To exercise At or prior to the Effective Time, (A) Acquiror will furnish to Equiserve, its transfer agent, or such other bank or trust company reasonably acceptable to the Company, to act as exchange agent (the "Exchange Agent") a corpus (the "Exchange Fund") consisting of Acquiror Shares and cash sufficient to permit the Exchange Right attaching Agent to make full payment of the Merger Consideration to the holders of all of the issued and outstanding Company Shares (other than any Company Shares owned by Acquiror or the Company), and (B) Acquiror will cause the Exchange Agent to mail a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by the Company and Acquiror prior to Closing to each holder of issued and outstanding Company Shares (other than any Company Shares owned by Acquiror or the Company) for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Company Shares against payment of the Merger Consideration to which such holder is entitled pursuant to Section 2(d)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Acquiror shall promptly cause to be issued a certificate representing that number of whole Acquiror Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any Noterequired tax withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Acquiror Shares. If payment is to be made to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of the Surviving Corporation or the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing Company Shares shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration deliverable in respect thereof; provided, however, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give the Surviving Corporation a bond in such sum as it may direct or otherwise indemnify the Surviving Corporation in a manner reasonably satisfactory to it against any claim that may be made against the Surviving Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions declared after the Effective Time with respect to Acquiror Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof must complete, execute and deposit at his own expense during normal business hours during the Exchange Period at the specified office of any Exchange Agent, a notice of exchange (an “Exchange Notice”) shall surrender such certificate in the form (for the time being current) obtainable from the specified office of any Exchange Agent, together accordance with the Certificate evidencing such Note (and any certificates and other documents as may be required by applicable law) and any amount to be paid by the Noteholder pursuant to this Condition 6(b)(iSection 2(e). An Exchange Notice once delivered shall be irrevocable. Exchange Rights may be exercised After the surrender of a certificate in respect of whole Notes only. Subject to Condition 6(maccordance with this Section 2(e), the Exchange Date in respect of a Note (the “Exchange Date”) will be the Exchange Business Day in the location of the relevant Exchange Agent immediately following the date of the surrender of the Certificate in respect of such Note, due delivery of the relevant Exchange Notice and, if applicable, the making of any payment to be made and the giving of any indemnity to be given under these Conditions in connection with the exercise of such Exchange Right or, in the case of an election by the Trustee to exercise the Exchange Rights pursuant to Condition 6(m), the relevant date fixed for redemption. A Noteholder or the Trustee exercising Exchange Rights must pay (in the case of the Trustee, by way of deduction from the proceeds pursuant to Condition 6(m)) any taxes and capital, stamp, issue, registration, documentary, transfer or other duties (including penalties) arising on exchange and/or on the transfer, delivery or other disposition of Exchange Property arising or exercise of Exchange Rights (“Stamp Taxes”) or provide an indemnity in respect record holder thereof in such form as the Issuer may reasonably require, other than or in respect of any Stamp Taxes payable or imposed in the Republic of the Philippines or any other jurisdiction in which the register in respect of any securities or other property comprising Exchange Property is located or in which any property comprising Exchange Property is situated which shall be payable by the Issuer. If the Issuer shall fail to pay any such Stamp Taxes, the relevant holder or, as the case may be, the Trustee shall be entitled to tender and pay receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the sameAcquiror Shares represented by such certificate. The IssuerNo holder of an unsurrendered certificate shall be entitled, as a separate and independent stipulation, covenants to reimburse each such Noteholder or, as until the case may be, the Trustee in respect of the payment surrender of such Stamp Taxes and any penalties payable in respect thereof certificate, to vote the Acquiror Shares into which his or its Company Shares shall be payable by have been converted into the Issuer. Such Noteholder or, as the case may be, the Trustee must pay right to the Exchange Agent (in the case of the Trustee, by way of deduction as aforesaid) all, if any, taxes arising by reference to any disposal or deemed disposal of a Note in connection with the exercise of Exchange Rightsreceive.
(ii) As soon The Company will cause its transfer agent to furnish promptly to Acquiror a list, as practicableof a recent date, and in any event not later than the Settlement Date:
(1) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property which are deposited with a Depository System, the delivery record holders of such PLDT Company Shares and/or other Relevant Securities, in each case, through and in accordance with the laws and regulations applicable to such Depository System, to the Securities Account designated for the purpose in the relevant Exchange Notice;
(2) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property that are not deposited in a clearing system and are only available in physical form, that duly stamped forms of transfer and share certificates together with all other documents of title and evidence of ownership and all other documents necessary to transfer the PLDT Shares and/or other Relevant Securities to be delivered or transferred on exchange into such name (subject to any relevant provisions of the Trust Deed and the Agency Agreement) as the Noteholder shall direct, will be despatched by mail, free of charge (but uninsured and at the risk of the person entitled thereto) to such address as the Noteholder may request (as specified in the relevant Exchange Notice);
(3) the Issuer and the Guarantor shall procure that such documents of title and evidence of ownership of any other Exchange Property to be delivered on exercise of Exchange Rights shall be despatched and the payment of any part of the Exchange Property comprising cash to be delivered on exercise of Exchange Rights (converted if necessary into U.S. dollars at the Prevailing Rate on the relevant Exchange Date) in accordance with directions given by the relevant Noteholder in the Exchange Notice. Notwithstanding the above, if the Exchange Property has changed in whole or in part as a result of acceptance of an Offer or as a result of the compulsory acquisition of any Relevant Securities, in each case as provided in Condition 7, then the time for such delivery shall be the longer of such period set out above and the day falling five Payment Business Days after the date on which the consideration is received by the Issuer under the terms of the Offer ortheir addresses, as well as mailing labels containing the case may be, the day falling five Payment Business Days following the date on which the consideration pursuant to such compulsory acquisition is received by the Issuer. If, at any time when the transfer or delivery names and addresses of any Exchange Property (other than cash) is required, such transfer or delivery would, as certified to the Trustee by two Directors all record holders of the Issuer or the Guarantor, be unlawful under the laws Company Shares and lists of any applicable jurisdiction or contrary to any official declaration, order, directive or regulation security positions of Company Shares held in any applicable jurisdiction, the Issuer will make a cash payment equal to the Cash Settlement Amount in respect of the relevant pro rata share of the Exchange Propertystock depositories. The Issuer Company will furnish Acquiror with such additional information (failing whom the Guarantorincluding, but not limited to, updated lists of holders of Company Shares and their addresses, mailing labels and lists of security positions) will pay any such amount to the relevant Noteholders or, as the case may be, the Trustee, not later than 10 Payment Business Days after the relevant Settlement Date. Upon exercise of an Exchange Right, a holder exchanging Notes shall be required to represent and agree in the Exchange Notice that, at the time of signing and delivery of the Exchange Notice, it, or the person who has the beneficial interest in such Notes, is (a) acquiring the Exchange Property (initially comprising the Shares) to be delivered upon exchange of such Notes in an offshore transaction (as defined in Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”)) in accordance with Rule 903 or Rule 904 of Regulation S (“Regulation S”), (b) located outside the United States and is not a U.S. person (within the meaning of Regulation S), and (c) understands that the Exchange Property to be delivered upon exchange of such Notes has not been and will not be registered under the Securities Act and agrees that (i) if it, or such person, should offer, sell, pledge or otherwise transfer such Exchange Property, it, or such person, will do so only in compliance with the Securities Act and other applicable laws and only in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S, and in accordance with any applicable securities law of any State of the United States, and (ii) it and such person other assistance as Acquiror or its agents may not, subject to restrictions under U.S. securities laws and Philippine securities laws, deposit or cause to be deposited any of such Exchange Property in the form of Shares in any unrestricted depositary receipt facility for the Shares which is existing or may be created in the United States. No Exchange Property will be delivered to a holder of Notes or a beneficial interest therein unless such holder satisfies the foregoing conditions. If such holder is unable or otherwise fails to satisfy the foregoing conditions, such holder may transfer its Exchange Property or beneficial interest therein subject to compliance with the transfer restrictions set forth in the Agency Agreementreasonably request.
(iii) The relevant Noteholder (or Acquiror may cause the person designated Exchange Agent to invest the cash included in the relevant Exchange Notice) will be treated as Fund in one or more investments selected by Acquiror; provided, however, that the owner terms and conditions of the pro rata share investments shall be such as to permit the Exchange Agent to make prompt payment of the Merger Consideration as necessary. Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any net earnings with respect to the investments, and Acquiror will replace promptly any portion of the Exchange Property deliverable upon exchange with effect from Fund which the Exchange Date and, in respect of such pro rata share Agent loses through investments.
(iv) Acquiror may cause the Exchange Agent to pay over to the Surviving Corporation any portion of the Exchange PropertyFund (including any earnings thereon) remaining 180 days after the Effective Time, will and thereafter all former stockholders of the Company shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the Merger Consideration and any cash payable upon surrender of their certificates.
(v) Acquiror shall pay, or shall cause the Surviving Corporation to pay, all rights, distributions or payments in respect of such pro rata share charges and expenses of the Exchange Property from the Exchange Date except voting rights. Accordingly, relevant adjustments to the Exchange Property shall be made in accordance with Conditions 6(c), (d), (e), (f), (g) and (j), as the case may be, such that further Relevant Securities or other property or assets (including cash) received pursuant to such adjustment shall be added to the Exchange Property (“Additional Exchange Property”). All Exchange Property deliverable upon exchange (including the Additional Exchange Property) shall be deliverable by the Issuer only on the Settlement Date. The “Effective Date” of a Rights Issue or any Sub-divisions, Consolidation or Redenomination or Relevant Event shall be the completion date of such event where cash, Securities and/or other property has been received by and/or credited into the relevant accounts of the person(s) entitled to receive the same. Any Exchange Property delivered on exercise of Exchange Rights shall not include any dividends or other income thereon or other distributions or rights in respect thereof, declared, paid or made by reference to a record date or other due date for the establishment of the relevant entitlement falling prior to the relevant Exchange Date. Exchange Property delivered or to be delivered upon exercise of Exchange Rights shall rank for and be entitled to all dividends, interest and other income, payments and distributions and rights thereon or in respect thereof declared, paid, made or granted by reference to a record date or other due date for the establishment of entitlement falling on or after the relevant Exchange Date. lf the record date or other due date for the establishment of the relevant entitlement for the payment of any dividend, interest or other income, payment or distribution or rights on or in respect of such Exchange Property falls on or after the Exchange Date but before the relevant Settlement Date (or any other date from which the relevant Noteholder is treated as the owner of, or entitled to all rights and entitlement to, such Exchange Property) with the effect that the relevant Noteholder is not entitled to such dividend, interest or other income, payment or distribution of rights, the Issuer will:
(a) (in the case of dividends, interest or other income or distributions or rights to be paid in cash) pay, or procure the payment to, the exchanging Noteholder (or the person designated in the relevant Exchange Notice) in lieu of such dividend, interest or other income or distribution or rights, an amount equal to the amount actually received, with respect thereto, converted if necessary into U.S. dollars at the Prevailing Rate on the date of receipt thereof by the Issuer (the “Equivalent Amount”). The Issuer will pay the Equivalent Amount, or procure that it is paid, to the relevant Noteholder (or the person designated in the relevant Exchange Notice) by whichever is the later of five Payment Business Days after payment is made of the dividend, interest or other income, payment or distribution or rights and the relevant Settlement Date; andAgent.
Appears in 1 contract
Procedure for Exchange. (i) To exercise the Exchange Right attaching to any NoteBond, the holder Holder thereof must complete, execute and deposit at his own expense during normal business hours during the Exchange Period at the specified office of any Exchange AgentAgent at the Holder’s own expense at reasonable times during normal business hours (being between 9:00 a.m. and 3:00 p.m. (local time), Monday to Friday other than public holidays) during the Exchange Period, a notice of exchange (an “Exchange Notice”) in the form (for the time being current) obtainable from the specified office of any Exchange Agent, together with the Certificate evidencing such Note Bond (and any certificates and other documents as may be required by applicable law) and any amount to be paid by the Noteholder Bondholder pursuant to this Condition 6(b)(i7(B)(i). An Exchange Notice once delivered shall be irrevocable. Exchange Rights may be exercised in respect of whole Notes Bonds only. Subject to Condition 6(m), An Exchange Notice once deposited shall not be withdrawn without the consent in writing of the Issuer. The Exchange Date in respect of a Note Bond (the “Exchange Date”) will be the Exchange Business Day in the location of the relevant Exchange Agent immediately following the date of the surrender of the Certificate in respect of such NoteBond (and any other documents as may be required by applicable law), due delivery of the relevant Exchange Notice and, if applicable, the making of any payment to be made and the giving of any indemnity and/or security to be given under these Conditions in connection with the exercise of such Exchange Right or, in the case of an election by the Trustee to exercise the Exchange Rights pursuant to Condition 6(m), the relevant date fixed for redemptionRight. A Noteholder or the Trustee Bondholder exercising Exchange Rights must pay (in directly to the case of the Trustee, by way of deduction from the proceeds pursuant to Condition 6(m)) relevant authorities any taxes and capital, stamp, issue, registration, documentary, transfer or other duties (including penalties) arising on exchange and/or on the transfer, delivery or other disposition of Exchange Property arising or on exercise of Exchange Rights (“Stamp Taxes”) or provide an indemnity and/or security in respect thereof in such form as the Issuer may reasonably require, other than or in respect of any Stamp Taxes payable or imposed in the Republic of Cayman Islands, Hong Kong, the Philippines PRC or any other jurisdiction in which the register in respect of any securities or other property comprising Exchange Property is located or in which any property comprising Exchange Property is situated (“Excluded Stamp Taxes”), which shall be payable by the IssuerIssuer directly to the relevant authorities. If the Issuer shall fail fails to pay any such Excluded Stamp Taxes, the relevant holder or, as the case may be, the Trustee Holder shall be entitled to tender and pay the sameExcluded Stamp Taxes to the relevant tax authority. The Issuer, as a separate and independent stipulation, Issuer covenants to reimburse each such Noteholder or, as the case may be, the Trustee Bondholder in respect of the payment of such Excluded Stamp Taxes by them and any penalties payable in respect thereof thereof, which shall be payable by the Issuer. Such Noteholder or, as the case may be, the Trustee Bondholder must pay to the Exchange Agent (in the case of the Trustee, by way of deduction as aforesaid) all, if any, taxes arising by reference to any disposal or deemed disposal of a Note Bond in connection with the exercise of Exchange RightsRights by it.
(ii) As Other than where a Cash Election is made by the Issuer and in respect of the Exchange Property to which such Cash Election relates, the Issuer shall, as soon as practicable, and in any event not later than the Settlement Date:
(1a) take all necessary action to procure the Issuer and the Guarantor shall procure, in the case transfer of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property which are deposited with a Depository System, the delivery of such PLDT Shares and/or other Relevant Securities, in each case, through and in accordance with the laws and regulations applicable to such Depository System, to the Securities Account designated for the purpose in the relevant Exchange Notice;
(2) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property that are not deposited in a clearing system and are only available in physical form, that duly stamped forms of transfer and share certificates together with all other documents of title and evidence of ownership and all other documents necessary to transfer the PLDT Shares and/or other Relevant Securities to be delivered or transferred on exchange into such name (subject exchanging Bondholders in accordance with prevailing regulations relevant to any relevant provisions the transfer of the Trust Deed Shares and/or other Relevant Securities to exchanging Bondholders. The Issuer shall take all necessary action to procure that the Shares and/or Relevant Securities are delivered to an exchanging Bondholder or its nominee as provided for in the Exchange Notice through CCASS (where permitted to do so under the rules, regulations and procedures of CCASS effective from time to time) within 15 Exchange Business Days after the Exchange Date. References to “Exchange Business Day” in the definition of “Settlement Date” and this Condition 7(B)(ii) shall mean a day on which both CCASS and the Agency Agreement) as the Noteholder shall directshare registrar and transfer office of Modern Dairy in Hong Kong are open for business for trade, will be despatched by mail, free of charge (but uninsured and at the risk settlement of the person entitled thereto) to such address as the Noteholder may request (as specified in the relevant Exchange Notice);Shares and for registration of Share transfers; and
(3b) the Issuer and the Guarantor shall procure that such documents of title and evidence of ownership of any other Exchange Property to be delivered on exercise of Exchange Rights shall be despatched and the any payment of any part of the Exchange Property comprising cash to be delivered on exercise of Exchange Rights (converted if necessary into U.S. dollars at the Prevailing Rate on the relevant Exchange Date) in accordance with directions given by the relevant Noteholder Bondholder in the Exchange Notice. Notwithstanding the above, if the Exchange Property has changed in whole or in part as a result of acceptance of an Offer or as a result of the compulsory acquisition of any Relevant Securities, in each case as provided in Condition 78, then the time for such delivery shall be the longer of such period set out above and the day falling five Payment Business Days after the date on which the consideration is received by the Issuer under the terms of the Offer or, as the case may be, the day falling five Payment Business Days following the date on which the consideration pursuant to such compulsory acquisition is received by the Issuer. If, at any time when the transfer or delivery of any Exchange Property (other than cash) is required, such transfer or delivery would, as certified to the Trustee by two Directors of the Issuer or the Guarantor, be unlawful under the laws of any applicable jurisdiction or contrary to any official declaration, order, directive or regulation in any applicable jurisdiction, the Issuer will make a cash payment equal to the Cash Settlement Amount in respect of the relevant pro rata share of the Exchange Property. The Issuer (failing whom the Guarantor) will pay any such amount to the relevant Noteholders or, as the case may be, the Trustee, not later than 10 Payment Business Days after the relevant Settlement Date. Upon exercise of an Exchange Right, a holder Holder exchanging Notes Bonds shall be required to represent and agree in the Exchange Notice that, at the time of signing and delivery of the Exchange Notice, it, or the person who has the beneficial interest in such NotesBonds, is (aI) acquiring the Exchange Property (initially comprising the Shares) to be delivered upon exchange of such Notes Bonds in an offshore transaction (as defined in Regulation S under the U.S. Securities Act of 1933 1933, as amended (the “Securities Act”)) in accordance with Rule 903 or Rule 904 of Regulation S (“Regulation S”), (bII) located outside the United States and is not a U.S. person (within the meaning of Regulation S), and (cIII) understands that the Exchange Property to be delivered upon exchange of such Notes Bonds has not been and will not be registered under the Securities Act and agrees that (ix) if it, or such person, should offer, sell, pledge or otherwise transfer such Exchange Property, it, or such person, will do so only in compliance with the Securities Act and other applicable laws and only in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S, and in accordance with any applicable securities law of any State of the United States, and (iiy) it and such person may not, subject to restrictions under U.S. securities laws and Philippine securities laws, deposit or cause to be deposited any of such Exchange Property in the form of Shares in any unrestricted depositary receipt facility for the Shares which is existing or may be created in the United States. No Exchange Property will be delivered to a holder of Notes Holder or a beneficial interest therein unless such holder Holder satisfies the foregoing conditions. If such holder Holder is unable or otherwise fails to satisfy the foregoing conditions, such holder Holder may transfer its Exchange Property or beneficial interest therein subject to compliance with the transfer restrictions set forth in the Agency Agreement.
(iii) The Unless a Cash Election is made by the Issuer and in respect of the Exchange Property to which such Cash Election relates, the relevant Noteholder Bondholder (or the person designated in the relevant Exchange Notice) will be treated as the owner of the pro rata share of the Exchange Property deliverable upon exchange with effect from the Exchange Date and, in respect of such pro rata share of the Exchange Property, will be entitled to all rights, distributions or payments in respect of such pro rata share of the Exchange Property from the Exchange Date except voting rights. Accordingly, relevant adjustments to the Exchange Property shall be made in accordance with Conditions 6(c7(C), (d7(D), (e7(E), (f7(F), (g7(G) and (j7(J), as the case may be, such that further Relevant Securities or other property or assets (including cash) received pursuant to such adjustment shall be added to the Exchange Property (“Additional Exchange Property”). All Exchange Property deliverable upon exchange (including the Additional Exchange Property) shall be deliverable by the Issuer only on the Settlement Date. The “Effective Date” of a Rights Issue or any Sub-divisions, Consolidation or Redenomination or Relevant Event shall be the completion date of such event where cash, Securities and/or other property has been received by and/or credited into the relevant accounts of the person(s) entitled to receive the same. Any Exchange Property delivered on exercise of Exchange Rights shall not include any dividends or other income thereon or other distributions or rights in respect thereof, declared, paid or made by reference to a record date or other due date for the establishment of the relevant entitlement falling prior to the relevant Exchange Date. Exchange Property delivered or to be delivered upon exercise of Exchange Rights shall rank for and be entitled to all dividends, interest and other income, payments and distributions and rights thereon or in respect thereof declared, paid, made or granted by reference to a record date or other due date for the establishment of entitlement falling on or after the relevant Exchange Date. lf If the record date or other due date for the establishment of the relevant entitlement for the payment of any dividend, interest or other income, payment or distribution or rights on or in respect of such Exchange Property falls on or after the Exchange Date but before the relevant Settlement Date (or any other date from which the relevant Noteholder Bondholder is treated as the owner of, or entitled to all rights and entitlement to, such Exchange Property) with the effect that the relevant Noteholder Bondholder is not entitled to such dividend, interest or other income, payment or distribution of rights, the Issuer will:
(a) (in the case of dividends, interest or other income or distributions or rights to be paid in cash) pay, or procure the payment to, the exchanging Noteholder Bondholder (or the person designated in the relevant Exchange Notice) in lieu of such dividend, interest or other income or distribution or rights, an amount equal to the amount actually received, with respect thereto, converted if necessary into U.S. dollars at the Prevailing Rate on the date of receipt thereof by the Issuer (the “Equivalent Amount”). The Issuer will pay the Equivalent Amount, or procure that it is paid, to the relevant Noteholder Bondholder (or the person designated in the relevant Exchange Notice) by whichever is the later of five Payment Business Days after payment is made of the dividend, interest or other income, payment or distribution or rights and the relevant Settlement Date; and
(b) subject to the last two paragraphs of Condition 7(B)(ii), (in the case of dividends, or other income or distributions or rights satisfied or made otherwise than in cash) deliver, or procure the delivery of, the same to the relevant Bondholder (or the person designated in the relevant Exchange Notice) as soon as practicable by whichever is the later of 10 Payment Business Days after the receipt by the Issuer of such dividend or other income or distribution or rights and the relevant Settlement Date.
(iv) Upon the exercise of Exchange Rights by a Bondholder on or after 24 June 2022, the Issuer may make an election (a “Cash Election”) by giving notice (a “Cash Election Notice”) to the relevant Bondholders by not later than the date (the “Cash Election Exercise Date”) falling five business days in Hong Kong following the relevant Exchange Date, with a copy to the Trustee, the Principal Agent and the Registrar, to satisfy the exercise of the Exchange Right in respect of the relevant Bonds, in whole or in part, and where in part, by reference to either (a) the principal amount of the Bonds in respect of which the Cash Election is being exercised (a “Principal Limit”), or (b) a maximum amount in U.S. dollars to be paid upon exercise of the Cash Election (a “Cash Limit”), by making payment, or procuring that payment is made, to the relevant Bondholder of the Cash Alternative Amount instead of delivering the pro rata share of the Exchange Property, together with any other amounts payable by the Issuer to such Bondholder pursuant to these Conditions in respect of, or relating to, the relevant exercise of Exchange Rights. A Cash Election may be made in respect of the whole or any part of the Exchange Property that would otherwise be deliverable in respect of the relevant exercise of Exchange Rights. The relevant Cash Election Notice shall specify whether the Cash Election is in respect of the whole of such Exchange Property or any part thereof, and if in respect of part, shall specify the relevant principal amount if a Principal Limit is applicable or the maximum amount payable if a Cash Limit is applicable. If a Cash Limit is applicable, then the proportion of Exchange Property subject to the Cash Election shall be equal to the number of Shares (or, if not available, any Relevant Security) represented by the Cash Limit divided by the Cash Alternative Amount attributable to a Share (or, if not available, any applicable Relevant Security) rounded down to the nearest whole number. The Cash Alternative Amount payable for the purposes of this Condition 7(B)(iv) where a Cash Limit is applicable shall be equal to Cash Alternative Amount attributable to a Share or a Relevant Security multiplied by the number of Shares or such Relevant Securities indicated in the foregoing sentence, as the case may be. Any remaining Exchange Property shall be delivered pursuant to Condition 7(B)(ii) and Condition 7(B)(iii) as if no Cash Election has been made with respect to such Exchange Property. A Cash Election shall be irrevocable. The Issuer will pay the Cash Alternative Amount, together with any other amount as aforesaid, by not later than four Payment Business Days following the last day of the Cash Alternative Calculation Period (the “Cash Alternative Payment Date”) by transfer to a U.S. dollar account maintained with a bank in New York City in accordance with instructions contained in the relevant Exchange Notice. If a Bondholder would otherwise have been entitled to receive, in respect of the exercise of Exchange Rights, any Additional Exchange Property pursuant to Condition 7(B)(iii) in circumstances where a Cash Election is made in respect of the relevant exercise of Exchange Rights, the Issuer shall, in lieu of delivering such Additional Exchange Property, pay to the relevant Bondholder an amount (the “Further Amount”) equal to the Value of such Additional Exchange Property as at the date on which the relevant adjustment to the Exchange Property is or would be effective (the “Change Date”), and the Issuer shall pay such Further Amount, or procure that such Further Amount is paid, to the Bondholder by transfer to a U.S. dollar account maintained with a bank in New York City in accordance with the instructions given by such Bondholder in the relevant Exchange Notice by not later than the latest of (a) the date falling five Payment Business Days after the Change Date, and (b) the relevant Cash Alternative Payment Date in accordance with the instructions given by the relevant Bondholder in the relevant Exchange Notice, provided that where a Cash Limit is applicable in respect of any Cash Election then any Additional Exchange Property shall be delivered to the Bondholder pursuant to Condition 7(B)(iii).
Appears in 1 contract
Sources: Subscription Agreement
Procedure for Exchange. (i) To exercise Prior to the Effective Time, Acquiror and Company will select a bank or trust company to act as exchange agent (the "Exchange Agent") hereunder. At or prior to the Effective Time, Acquiror shall deposit with the Exchange Right attaching Agent a corpus (the "Exchange Fund") consisting of Shares and cash sufficient to permit the Exchange Agent to make full payment of the applicable Merger Consideration to the holders of all of the issued and outstanding Company Capital Stock, and (B) Acquiror will cause the Exchange Agent to mail or deliver a letter of transmittal (with instructions for its use) in a form to be mutually agreed upon by Acquiror and Company prior to Closing to each holder of issued and outstanding Company Capital Stock for the holder to use in surrendering the certificates which, immediately prior to the Effective Time, represented his or its Company Capital Stock against payment of the applicable Merger Consideration to which such holder is entitled pursuant to § 2(d)(v). Upon surrender to the Exchange Agent of such certificates, together with such letter of transmittal, duly executed and completed in accordance with the instructions thereto, Acquiror shall promptly cause to be issued a certificate representing that number of whole Shares and a check representing the amount of cash in lieu of any fractional shares and unpaid dividends and distributions, if any, to which such Persons are entitled, after giving effect to any Noterequired tax withholdings. No interest will be paid or accrued on the cash in lieu of fractional shares and unpaid dividends and distributions, if any, payable to recipients of Shares. If payment is to be made to a Person other than the registered holder of the certificate surrendered, it shall be a condition of such payment that the certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such payment shall pay any transfer or other taxes required by reason of the payment to a Person other than the registered holder of the certificate surrendered or establish to the reasonable satisfaction of Acquiror or the Exchange Agent that such tax has been paid or is not applicable. In the event any certificate representing Company Capital Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Exchange Agent will issue in exchange for such lost, stolen or destroyed certificate the applicable Merger Consideration deliverable in respect thereof; provided, however, the Person to whom such Merger Consideration is paid shall, as a condition precedent to the payment thereof, give Acquiror a bond or undertaking in such sum as it may direct or otherwise indemnify Acquiror in a manner reasonably satisfactory to it against any claim that may be made against Acquiror with respect to the certificate alleged to have been lost, stolen or destroyed. No dividends or other distributions declared after the Effective Time with respect to Shares and payable to the holders of record thereof shall be paid to the holder of any unsurrendered certificate until the holder thereof must complete, execute and deposit at his own expense during normal business hours during the Exchange Period at the specified office of any Exchange Agent, a notice of exchange (an “Exchange Notice”) shall surrender such certificate in the form (for the time being current) obtainable from the specified office of any Exchange Agent, together accordance with the Certificate evidencing such Note (and any certificates and other documents as may be required by applicable law) and any amount to be paid by the Noteholder pursuant to this Condition 6(b)(i§ 2(e). An Exchange Notice once delivered shall be irrevocable. Exchange Rights may be exercised After the surrender of a certificate in respect of whole Notes only. Subject to Condition 6(maccordance with this § 2(e), the Exchange Date in respect of a Note (the “Exchange Date”) will be the Exchange Business Day in the location of the relevant Exchange Agent immediately following the date of the surrender of the Certificate in respect of such Note, due delivery of the relevant Exchange Notice and, if applicable, the making of any payment to be made and the giving of any indemnity to be given under these Conditions in connection with the exercise of such Exchange Right or, in the case of an election by the Trustee to exercise the Exchange Rights pursuant to Condition 6(m), the relevant date fixed for redemption. A Noteholder or the Trustee exercising Exchange Rights must pay (in the case of the Trustee, by way of deduction from the proceeds pursuant to Condition 6(m)) any taxes and capital, stamp, issue, registration, documentary, transfer or other duties (including penalties) arising on exchange and/or on the transfer, delivery or other disposition of Exchange Property arising or exercise of Exchange Rights (“Stamp Taxes”) or provide an indemnity in respect record holder thereof in such form as the Issuer may reasonably require, other than or in respect of any Stamp Taxes payable or imposed in the Republic of the Philippines or any other jurisdiction in which the register in respect of any securities or other property comprising Exchange Property is located or in which any property comprising Exchange Property is situated which shall be payable by the Issuer. If the Issuer shall fail to pay any such Stamp Taxes, the relevant holder or, as the case may be, the Trustee shall be entitled to tender and pay receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the sameShares represented by such certificate. The IssuerNo holder of an unsurrendered certificate shall be entitled, as a separate and independent stipulation, covenants to reimburse each such Noteholder or, as until the case may be, the Trustee in respect of the payment surrender of such Stamp Taxes and any penalties payable in respect thereof certificate, to vote the Shares which his or its Company Capital Stock shall be payable by have been converted into the Issuer. Such Noteholder or, as the case may be, the Trustee must pay right to the Exchange Agent (in the case of the Trustee, by way of deduction as aforesaid) all, if any, taxes arising by reference to any disposal or deemed disposal of a Note in connection with the exercise of Exchange Rightsreceive.
(ii) As soon Company will furnish promptly to Acquiror a list, as practicableof a recent date, and in any event not later than the Settlement Date:
(1) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property which are deposited with a Depository System, the delivery record holders of such PLDT Company Shares and/or other Relevant Securities, in each case, through and in accordance with the laws Company Preferred Shares and regulations applicable to such Depository System, to the Securities Account designated for the purpose in the relevant Exchange Notice;
(2) the Issuer and the Guarantor shall procure, in the case of PLDT Shares and/or any other Relevant Securities comprising the relevant pro rata share of the Exchange Property that are not deposited in a clearing system and are only available in physical form, that duly stamped forms of transfer and share certificates together with all other documents of title and evidence of ownership and all other documents necessary to transfer the PLDT Shares and/or other Relevant Securities to be delivered or transferred on exchange into such name (subject to any relevant provisions of the Trust Deed and the Agency Agreement) as the Noteholder shall direct, will be despatched by mail, free of charge (but uninsured and at the risk of the person entitled thereto) to such address as the Noteholder may request (as specified in the relevant Exchange Notice);
(3) the Issuer and the Guarantor shall procure that such documents of title and evidence of ownership of any other Exchange Property to be delivered on exercise of Exchange Rights shall be despatched and the payment of any part of the Exchange Property comprising cash to be delivered on exercise of Exchange Rights (converted if necessary into U.S. dollars at the Prevailing Rate on the relevant Exchange Date) in accordance with directions given by the relevant Noteholder in the Exchange Notice. Notwithstanding the above, if the Exchange Property has changed in whole or in part as a result of acceptance of an Offer or as a result of the compulsory acquisition of any Relevant Securities, in each case as provided in Condition 7, then the time for such delivery shall be the longer of such period set out above and the day falling five Payment Business Days after the date on which the consideration is received by the Issuer under the terms of the Offer ortheir addresses, as well as mailing labels containing the case may benames and addresses of all record holders of Company Shares and Company Preferred Shares. Company will furnish Acquiror with such additional information (including, the day falling five Payment Business Days following the date on which the consideration pursuant to such compulsory acquisition is received by the Issuer. Ifbut not limited to, at any time when the transfer or delivery updated lists of any Exchange Property (other than cashholders of Company Shares and Company Preferred Shares and their addresses and mailing labels) is required, such transfer or delivery would, as certified to the Trustee by two Directors of the Issuer or the Guarantor, be unlawful under the laws of any applicable jurisdiction or contrary to any official declaration, order, directive or regulation in any applicable jurisdiction, the Issuer will make a cash payment equal to the Cash Settlement Amount in respect of the relevant pro rata share of the Exchange Property. The Issuer (failing whom the Guarantor) will pay any such amount to the relevant Noteholders or, as the case may be, the Trustee, not later than 10 Payment Business Days after the relevant Settlement Date. Upon exercise of an Exchange Right, a holder exchanging Notes shall be required to represent and agree in the Exchange Notice that, at the time of signing and delivery of the Exchange Notice, it, or the person who has the beneficial interest in such Notes, is (a) acquiring the Exchange Property (initially comprising the Shares) to be delivered upon exchange of such Notes in an offshore transaction (as defined in Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”)) in accordance with Rule 903 or Rule 904 of Regulation S (“Regulation S”), (b) located outside the United States and is not a U.S. person (within the meaning of Regulation S), and (c) understands that the Exchange Property to be delivered upon exchange of such Notes has not been and will not be registered under the Securities Act and agrees that (i) if it, or such person, should offer, sell, pledge or otherwise transfer such Exchange Property, it, or such person, will do so only in compliance with the Securities Act and other applicable laws and only in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S, and in accordance with any applicable securities law of any State of the United States, and (ii) it and such person other assistance as Acquiror or its agents may not, subject to restrictions under U.S. securities laws and Philippine securities laws, deposit or cause to be deposited any of such Exchange Property in the form of Shares in any unrestricted depositary receipt facility for the Shares which is existing or may be created in the United States. No Exchange Property will be delivered to a holder of Notes or a beneficial interest therein unless such holder satisfies the foregoing conditions. If such holder is unable or otherwise fails to satisfy the foregoing conditions, such holder may transfer its Exchange Property or beneficial interest therein subject to compliance with the transfer restrictions set forth in the Agency Agreementreasonably request.
(iii) The relevant Noteholder (or Acquiror may cause the person designated Exchange Agent to invest the cash included in the relevant Exchange Notice) will be treated as Fund in one or more investments selected by Acquiror; provided, however, that the owner terms and conditions of the pro rata share investments shall be such as to permit the Exchange Agent to make prompt payment of the Merger Consideration as necessary. Acquiror may cause the Exchange Agent to pay over to Acquiror any net earnings with respect to the investments, and Acquiror will replace promptly any portion of the Exchange Property deliverable upon exchange with effect from Fund which the Exchange Date and, in respect of such pro rata share Agent loses through investments.
(iv) Acquiror may cause the Exchange Agent to pay over to Acquiror any portion of the Exchange PropertyFund (including any earnings thereon) remaining 180 days after the Effective Time, will and thereafter all former stockholders of Company shall be entitled to look to Acquiror (subject to abandoned property, escheat and other similar laws) as general creditors thereof with respect to the Merger Consideration and any cash payable upon surrender of their certificates.
(v) Acquiror shall pay all rights, distributions or payments in respect of such pro rata share charges and expenses of the Exchange Property from Agent; provided that if a Closing does not occur, Acquiror and Company shall split equally any charges and expenses of the Exchange Date except voting rights. Accordingly, relevant adjustments to the Exchange Property shall be made in accordance with Conditions 6(c), (d), (e), (f), (g) and (j), as the case may be, such that further Relevant Securities or other property or assets (including cash) received pursuant to such adjustment shall be added to the Exchange Property (“Additional Exchange Property”). All Exchange Property deliverable upon exchange (including the Additional Exchange Property) shall be deliverable by the Issuer only on the Settlement Date. The “Effective Date” of a Rights Issue or any Sub-divisions, Consolidation or Redenomination or Relevant Event shall be the completion date of such event where cash, Securities and/or other property has been received by and/or credited into the relevant accounts of the person(s) entitled to receive the same. Any Exchange Property delivered on exercise of Exchange Rights shall not include any dividends or other income thereon or other distributions or rights in respect thereof, declared, paid or made by reference to a record date or other due date for the establishment of the relevant entitlement falling prior to the relevant Exchange Date. Exchange Property delivered or to be delivered upon exercise of Exchange Rights shall rank for and be entitled to all dividends, interest and other income, payments and distributions and rights thereon or in respect thereof declared, paid, made or granted by reference to a record date or other due date for the establishment of entitlement falling on or after the relevant Exchange Date. lf the record date or other due date for the establishment of the relevant entitlement for the payment of any dividend, interest or other income, payment or distribution or rights on or in respect of such Exchange Property falls on or after the Exchange Date but before the relevant Settlement Date (or any other date from which the relevant Noteholder is treated as the owner of, or entitled to all rights and entitlement to, such Exchange Property) with the effect that the relevant Noteholder is not entitled to such dividend, interest or other income, payment or distribution of rights, the Issuer will:
(a) (in the case of dividends, interest or other income or distributions or rights to be paid in cash) pay, or procure the payment to, the exchanging Noteholder (or the person designated in the relevant Exchange Notice) in lieu of such dividend, interest or other income or distribution or rights, an amount equal to the amount actually received, with respect thereto, converted if necessary into U.S. dollars at the Prevailing Rate on the date of receipt thereof by the Issuer (the “Equivalent Amount”). The Issuer will pay the Equivalent Amount, or procure that it is paid, to the relevant Noteholder (or the person designated in the relevant Exchange Notice) by whichever is the later of five Payment Business Days after payment is made of the dividend, interest or other income, payment or distribution or rights and the relevant Settlement Date; andAgent.
Appears in 1 contract
Sources: Merger Agreement (Infonautics Inc)