Conditions to Net Physical Settlement definition
Conditions to Net Physical Settlement herein, Counterparty shall settle the Transaction through Cash Settlement; provided, however, that notwithstanding the foregoing, if either (a) Counterparty does not provide for the sale of the Shares under the Registration Statement as provided in the Registration Rights Agreement, (b) some Shares cannot be registered under the Registration Statement due to Rule 415(a)(4) under the Securities Act, or (c) some or all of the Delivered Shares cannot be used to close out stock loans in the shares of Counterparty entered into to establish or maintain short positions by MSIL in connection with this Transaction without a prospectus being required by applicable law to be delivered to such lender, then Counterparty may deliver unregistered or registered Shares. In the case of clauses (a) or (b) above, the value of any unregistered Shares so delivered shall be discounted to reflect their market value (calculated in a commercially reasonable manner). In the case of clause (c) above, the value of any such Delivered Shares shall reflect the cost (calculated in a commercially reasonable manner) to MSIL of trading Shares in order to close out its hedge position if any, in all cases for purposes of calculating the Delivered Shares. In no event shall Counterparty be required to top-up the delivery in cash. Limitations on Net Physical Settlement by Counterparty: Notwithstanding anything herein or in the Agreement to the contrary, the number of Shares that may be delivered at settlement by Counterparty shall not exceed 19,569,844 at any time (“Maximum Deliverable Share Amount”). Counterparty represents and warrants that the number of Available Shares as of the Trade Date is greater than the Maximum Deliverable Share Amount. Counterparty covenants and agrees that Counterparty shall not take any action of corporate governance or otherwise to reduce the number of Available Shares below the Maximum Deliverable Share Amount.
Conditions to Net Physical Settlement herein, Counterparty shall settle the Transaction through Cash Settlement; provided however, that notwithstanding the foregoing, Counterparty may deliver unregistered Shares. In such case, the value of any unregistered Shares so delivered shall be discounted to reflect their market value (calculated in a commercially reasonable manner) or the cost (calculated in a commercially reasonable manner) to Bank of trading Shares in order to close out its hedge position, if any, and such discounted value shall be used in place of the Settlement Price for purposes of determining the number of Delivered Shares. In no event shall Counterparty be required to top-up the delivery in cash.
Conditions to Net Physical Settlement. At least 15 Exchange Business Days prior to the Expiration Date, Counterparty shall (i) make available to ML an effective registration statement (the "REGISTRATION STATEMENT") filed pursuant to Rule 415 under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and such prospectuses as ML may reasonably request to comply with the applicable prospectus delivery requirements (the "PROSPECTUS") for the resale by ML of such number of Shares as ML shall reasonably specify, such Registration Statement to be effective and Prospectus to be current until the earliest of the date on which (A) all Delivered Shares have been sold by ML or returned to Counterparty pursuant to the Net Physical Settlement Adjustment provision above or (B) ML has advised Counterparty that it no longer requires that such Registration Statement be effective (the "REGISTRATION PERIOD") or (ii) Counterparty has provided a legal opinion in form and substance satisfactory to ML (with customary assumptions and exceptions) that the Shares issuable upon exercise of these Warrants will be freely tradable under the Securities Act upon delivery to ML and not subject to any legend restricting transferability. It is understood that the Registration Statement and Prospectus may cover a number of Shares equal to the aggregate number of Shares (if any) reasonably estimated by ML to be potentially deliverable by Counterparty in connection with Net Physical Settlement hereunder; In addition, the following representation, which Counterparty shall be deemed to make on each day during the Registration Period, shall be true and correct: "Counterparty represents that the Registration Statement, at the time the same became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; Counterparty represents the Prospectus (as the same may be supplemented from time to time) does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading."