Common use of Adjustment of Terms Clause in Contracts

Adjustment of Terms. (a) In the event (i) of any corporate event involving the Company or the Common Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into shares of Common 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 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 zero basis points 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) described herein shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment, applying commercially reasonable standards, it deems appropriate under the circumstances (including, without limitation, adjustments to account for the economics of and changes in the price or volatility of the Common Stock following the announcement of any such corporate 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 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.

Adjustment of Terms. (a) In the event (i) of any corporate event involving the Company or the Common Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into shares of Common 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 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 zero basis points 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) described herein shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment, applying commercially reasonable standards, it deems appropriate under the circumstances (including, without limitation, adjustments to account for the economics of and changes in the price or volatility of the Common Stock following the announcement of any such corporate 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 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.

Adjustment of Terms. (a) In the event (i) of any corporate event involving the Company or the Common Stock (including, without limitation, a stock split, stock dividend, bankruptcy, insolvency, reorganization, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into shares of Common Stock), or the announcement of any such corporate event, (ii) the Seller determines, in its reasonable discretion, after its exercise of commercially reasonable effortsdiscretion 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 zero the Federal Funds Rate minus 50 basis points 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) 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, applying commercially reasonable standards, judgment it deems appropriate under the circumstances (including, without limitation, adjustments circumstances; provided that in no event shall any adjustment pursuant to account for the economics of and changes in the price or volatility this Section 7 eliminate any of the Common Stock following settlement methods available to the announcement of any such corporate event)Company pursuant to Section 5 hereof. (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 subsections subsection (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.

Adjustment of Terms. (a) In the event (i) of any of the following corporate event events involving the Company IBM or the Common Stock (including, without limitation, a stock split, stock dividend, Stock: bankruptcy, insolvency, reorganizationreorganization pursuant to Title 11 of the United States Code, Merger Event, Tender Offer, rights offering, recapitalization, spin-off or issuance of any securities convertible or exchangeable into shares share of Common Stock), Stock or Potential Adjustment Event 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 this Letter 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 zero the Federal Funds Rate minus 35 basis points per annumpoints, 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) described herein Amount shall be subject to adjustment by the Calculation Agent as in the exercise of its good faith judgment, applying commercially reasonable standards, judgment it deems appropriate under the circumstances (includingcircumstances. For the avoidance of doubt, without limitationno such adjustment shall result in an obligation of the Company to make a cash payment to Seller, adjustments to account for the economics of and changes it being understood that such adjustment may be reflected in the price or volatility of cash amount payable at the Common Stock following the announcement of any such corporate eventCompany’s election pursuant to Section 5(a)(ii)(C). (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 subsections subsection (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.