Common use of Adjustment of Terms Clause in Contracts

Adjustment of Terms. (a) In the event (i) of any of the following corporate events involving IBM or the Common Stock: bankruptcy, insolvency, reorganization pursuant to Title 11 of the United States Code, Merger Event, Tender Offer, issuance of any securities convertible or exchangeable into share of Common Stock or Potential Adjustment Event or the announcement of any such corporate event, (ii) the Seller determines, in its reasonable discretion, that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge of its position in respect of the transactions contemplated by the Agreement or (iii) the Seller determines, in its reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 basis points, then, in each case, the number of Trading Days in the Averaging Period, any Daily Average Price and the Settlement Amount shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment it deems appropriate under the circumstances. For the avoidance of doubt, no such adjustment shall result in an obligation of the Company to make a cash payment to Seller, it being understood that such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(C). (b) Notwithstanding the authority provided to the Calculation Agent in subsection (a) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entity, the adjustments referred to in such subsection shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstances. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.

Adjustment of Terms. (a) In the event (i) of any of an offer is made to the following corporate events involving IBM or the Common Stock: bankruptcy, insolvency, reorganization pursuant to Title 11 of the United States Code, Merger Event, Tender Offer, issuance of any securities convertible or exchangeable into share holders of Common Stock or Potential Adjustment Event or to tender in excess of 10% of the announcement outstanding shares of any such corporate eventCommon Stock for cash, (ii) the Seller determinesCitigroup may, in its reasonable discretion, that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge of its position in respect of the transactions contemplated by the Agreement or (iiii) the Seller determines, in its reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 basis points, then, in each case, reduce the number of Trading Days in the Averaging PeriodPricing Period by an amount Citigroup deems appropriate or (ii) adjust the terms of the transaction so that (A) the final day of the Pricing Period shall be the earlier of the scheduled final Trading Day of the Pricing Period and the date the tender offer is consummated and (B) for each of the Trading Days in the Pricing Period following the date on which the offer is made, any the Daily Average Price and shall equal the Settlement Amount price per share of Common Stock at which the tender offer is to be consummated. Citigroup shall notify the Company in writing as to the terms of any adjustment made pursuant to this Section IX (a) no later than 5 days after the tender offer is made. The foregoing notwithstanding Citigroup may not make any adjustment to the Federal Funds Open Rate or the Closing Fee. (b) [This section intentionally left blank.] (c) In the event of any corporate event involving the Company or the Common Stock not specifically addressed in subsection (a) of this Section IX (including, without limitation, a non-cash dividend, stock split, reorganization, merger, offer to tender Common Stock for consideration other than cash, rights offering, recapitalization or spin-off) or in the event that Citigroup, in its reasonable good faith judgment, determines that the adjustments described in subsection (a) of this Section IX will not result in an equitable adjustment of the terms of the transaction described herein, the terms of the transaction described herein shall be subject to adjustment by Citigroup (including, without limitation, with respect to the Calculation Agent number of Trading Days in the Pricing Period) as in the exercise of its good faith judgment it deems appropriate under the circumstances. For the avoidance of doubt, no such which adjustment shall result in an obligation be subject to the approval of the Company Company. If the parties, after negotiating in good faith, are unable to make a cash payment to Seller, it being understood that determine such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(C). (b) Notwithstanding the authority provided to the Calculation Agent in subsection (a) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entityadjustments, the adjustments referred to in such subsection provisions of Section XVII (Dispute Resolution) below shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstancesapply. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.

Adjustment of Terms. (a) In the event (i) of any of corporate event involving the following corporate events involving IBM Company or the Common Stock: Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization pursuant to Title 11 of the United States Codereorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into share shares of Common Stock or Potential Adjustment Event Stock), or the announcement of any such corporate event, (ii) the Seller determines, in its reasonable discretion, that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge of its position in respect of the transactions contemplated by the this Letter Agreement or (iii) the Seller determines, in its reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 zero basis pointspoints per annum, then, in each case, the terms of the transaction (including, without limitation, the number of Trading Days in the Averaging Period, any Daily Average Price, the Cap Price and the Settlement Amount Amount) described herein shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment judgment, applying commercially reasonable standards, it deems appropriate under the circumstances. For circumstances (including, without limitation, adjustments to account for the avoidance economics of doubt, no such adjustment shall result and changes in an obligation the price or volatility of the Company to make a cash payment to Seller, it being understood that Common Stock following the announcement of any such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(Ccorporate event). (b) In the event that the Calculation Agent determines that an Announcement Date has occurred, then, in addition to any adjustments effected pursuant to Section 7(a), (i) the definition of Repurchase Cost shall be amended by deleting the proviso thereto, effective as of the Announcement Date, and (ii) if the Announcement Date occurs during the Averaging Period, the Settlement Amount shall be increased by an amount equal to the forward value on the last day of the Averaging Period of the Cap Fair Market Value, as reasonably determined by the Calculation Agent. In addition, in the event that the Calculation Agent determines prior to the date the Supplemental Terms Notice is executed that the Announcement Date for a Friendly Transaction has occurred, then the parties shall not be obligated to execute the Supplemental Terms Notice and the Company shall not be obligated to pay the Premium to the Seller. (c) Notwithstanding the authority provided to the Calculation Agent in subsection subsections (a) and (b) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entity, the adjustments referred to in such subsection shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstances. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.

Adjustment of Terms. (a) In the event (i) of any of corporate event involving the following corporate events involving IBM Company or the Common Stock: Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization pursuant to Title 11 of the United States Codereorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into share shares of Common Stock or Potential Adjustment Event Stock), or the announcement of any such corporate event, (ii) the Seller determines, in its commercially reasonable discretiondiscretion after using commercially reasonable efforts to do so, that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge of its position in respect of the transactions contemplated by this Letter Agreement when such hedge is necessary or consistent with the Seller’s customary business practices to hedge the price and market risk of performance under this Letter Agreement or (iii) the Seller determines, in its commercially reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 50 basis pointspoints per annum, then, in each case, the terms of the transaction (including, without limitation, the number of Trading Days in the Averaging Period, any Daily Average Price and the Settlement Amount Amount) described herein shall be subject to adjustment by the Calculation Agent in a commercially reasonable manner as in the exercise of its good faith judgment it deems appropriate under the circumstances. For the avoidance of doubt, ; provided that in no such event shall any adjustment shall result in an obligation pursuant to this Section 7 eliminate any of the settlement methods available to the Company to make a cash payment to Seller, it being understood that such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(C)5 hereof. (b) Notwithstanding the authority provided to the Calculation Agent in subsection (a) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entity, the adjustments referred to in such subsection shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstances. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.

Adjustment of Terms. (a) In the event an offer is made to the holders of Common Stock to tender shares of Common Stock for cash, the Calculation Agent may, in its discretion (i) reduce the number of Trading Days in the Averaging Period by an amount the Seller deems appropriate or (ii) adjust the terms of the transaction so that (A) the final day of the Averaging Period shall be the earlier of the scheduled final Trading Day of the Averaging Period and the date such tender offer is consummated and (B) for each of the Trading Days in the Averaging Period following the date on which such tender offer is made, the Daily Average Price shall equal the price per share of Common Stock at which the tender offer is to be consummated. The Seller shall notify the Company in writing as to the terms of any adjustment made pursuant to this Section 7(a) no later than ten days after such a tender offer is made. (b) In the event of any corporate event involving the following corporate events involving IBM Company or the Common Stock: Stock not specifically addressed in subsection (a) of this Section 7 (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization pursuant reorganization, merger, offer to Title 11 of the United States Code, Merger Event, Tender Offer, issuance of any securities convertible or exchangeable into share of tender Common Stock for consideration other than cash, rights offering, recapitalization or Potential Adjustment Event spin-off) or in the announcement of any such corporate event, (ii) event that the Seller determinesSeller, in its reasonable discretiongood faith judgment, determines that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge the adjustments described in subsection (a) of its position this Section 7 will not result in respect an equitable adjustment of the transactions contemplated by terms of the Agreement or transaction described herein, the terms of the transaction (iii) including, without limitation, the Seller determines, in its reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 basis points, then, in each case, Purchase Price and the number of Trading Days in the Averaging Period, any Daily Average Price and the Settlement Amount ) described herein shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment it deems appropriate under the circumstances. For the avoidance of doubt, no such adjustment shall result in an obligation of the Company to make a cash payment to Seller, it being understood that such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(C). (bc) Notwithstanding the authority provided to the Calculation Agent in subsection subsections (a) and (b) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entity, the adjustments referred to in such subsection subsections shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstances. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.

Adjustment of Terms. (a) In the event (i) of any of corporate event involving the following corporate events involving IBM Company or the Common Stock: Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization pursuant to Title 11 of the United States Codereorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into share shares of Common Stock or Potential Adjustment Event Stock), or the announcement of any such corporate event, (ii) the Seller determines, in its reasonable discretion, after its exercise of commercially reasonable efforts, that it is unable or it is impracticable to establish, re-establish, substitute or maintain a hedge of its position in respect of the transactions contemplated by the this Letter Agreement or (iii) the Seller determines, in its reasonable discretion, that it is unable to borrow Common Stock at a rebate rate greater than or equal to the Federal Funds Rate minus 35 zero basis pointspoints per annum, then, in each case, the terms of the transaction (including, without limitation, the number of Trading Days in the Averaging Period, any Daily Average Price, the Cap Price and the Settlement Amount Amount) described herein shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment judgment, applying commercially reasonable standards, it deems appropriate under the circumstances. For circumstances (including, without limitation, adjustments to account for the avoidance economics of doubt, no such adjustment shall result and changes in an obligation the price or volatility of the Company to make a cash payment to Seller, it being understood that Common Stock following the announcement of any such adjustment may be reflected in the cash amount payable at the Company’s election pursuant to Section 5(a)(ii)(Ccorporate event). (b) In the event that the Calculation Agent determines that an Announcement Date has occurred, then, in addition to any adjustments effected pursuant to Section 7(a), (i) the definition of Repurchase Cost shall be amended by deleting the proviso thereto, effective as of the Announcement Date, and (ii) if the Announcement Date occurs during the Averaging Period, the Settlement Amount shall be increased by an amount equal to the forward value on the last day of the Averaging Period of the Cap Fair Market Value, as reasonably determined by the Calculation Agent. In addition, in the event that the Calculation Agent determines prior to the date the Supplemental Terms Notice is executed that the Announcement Date for a Friendly Transaction has occurred, then the parties shall not be obligated to execute the Supplemental Terms Notice and the Company shall not be obligated to pay the Premium to the Seller. (c) Notwithstanding the authority provided to the Calculation Agent in subsection subsections (a) and (b) of this Section 7, in the event of a corporate event (such as certain reorganizations, mergers, or other similar events) in which all holders of Common Stock may receive consideration other than the common equity securities of the continuing or surviving entity, the adjustments referred to in such subsection shall permit the Company to satisfy its settlement obligations hereunder by delivering the consideration received by holders of Common Stock upon such corporate event, in such proportions as in the exercise of its good faith judgment the Calculation Agent deems appropriate under the circumstances. (c) In the event that IBM declares or pays any Extraordinary Dividend, the Seller shall have the right in its discretion to accelerate the settlement of the transactions contemplated by the Agreement by designating any date on or after the date of the declaration of such Extraordinary Dividend as the “Acceleration Date”, in which event the last day of the Averaging Period shall be accelerated to the Acceleration Date (regardless of whether the Averaging Period Start Date has occurred prior to the Acceleration Date), and the Average Purchase Price shall be determined as if the Daily Average Price for all Trading Days that were, but for such acceleration, scheduled to occur during the Averaging Period on or after the Acceleration Date were the average per share price obtained by the Calculation Agent from at least three experienced third party market participants as the price at which such participant would offer to sell to the Seller a block of shares of Common Stock (with such legal or other restrictions as the Seller may in its reasonable judgment impose on such participant relating to the acquisition of such block or, if such block may be sold short to the Seller, the covering of such participant’s resulting short position) equal in number to the Seller’s theoretical net short position in relation to the Agreement and the transactions contemplated thereby as of the Acceleration Date, as determined by the Calculation Agent. “Extraordinary Dividend” means any dividend on the Common Stock with an ex-dividend date that occurs from and including the date of the Cover Letter through and including the last day of the Averaging Period, other than an ordinary cash dividend of $0.40 per share with an ex-dividend date on August 8, 2007, November 7, 2007 or February 6, 2008.