Alternative Merger Structure. (a) Notwithstanding any other provision of this Agreement, if all of the conditions set forth in Article VII have been fulfilled or waived (other than those conditions that by their terms are satisfied at or immediately prior to Closing) other than the conditions set forth in Section 7.2(e) (CME Group Tax Opinion) and Section 7.3(d) (NYMEX Holdings Tax Opinion), and if either counsel to CME Group or counsel to NYMEX Holdings are unable to render the opinions described in Section 7.2(e) (CME Group Tax Opinion) and Section 7.3(d) (NYMEX Holdings Tax Opinion), respectively, then NYMEX Holdings shall have the option, in its sole discretion upon two (2) Business Days notice to CME Group, to require that Merger Sub merge into NYMEX Holdings in the Merger and that NYMEX Holdings and not Merger Sub be the Surviving Corporation for all purposes in this Agreement (the “Reverse Merger”). Notwithstanding any other provision of this Agreement, in the event of a Reverse Merger, the conversion of the issued and outstanding NYMEX Holdings Common Securities shall occur as provided in Article I and Article II, except that CME Group shall have the option, in its sole discretion, to convert each Stock Election Share and each No Election Share into a Cash Election Share and to increase the amount of the Available Cash Consideration up to the amount of the Aggregate Merger Consideration. The other provisions of this Agreement shall continue to apply in the event of a Reverse Merger, mutatis mutandis, except that the Parties hereto shall be deemed to have waived the conditions set forth in Section 7.2(e) (CME Group Tax Opinion) and Section 7.3(d) (NYMEX Holdings Tax Opinion).
Alternative Merger Structure. While it is currently contemplated that the Merger shall be effected through the merger of Sub with and into Seller, Buyer shall have the option, in its sole discretion, to cause the Merger to be effected through an alternative transaction structure of Seller merging with and into Buyer, with Buyer being the Surviving Corporation (the "Alternative Merger"), in which the case the appropriate technical provisions of this Agreement shall be deemed to be amended as necessary in order to effect the Alternative Merger. If Buyer desires to effect the Alternative Merger, it shall deliver a notice to Seller of its election to do so, which notice shall be available for the inspection of any stockholder of Seller upon request during normal business hours. As part of the Proxy Statement and in the manner required by applicable law, Seller shall describe the provisions of this Section 1.05 such that approval of the Seller Voting Proposal shall entail approval of both Merger and (if elected to be effected by Buyer) the Alternative Merger. In the event an Alternative Merger is effected, (i) Seller shall not be deemed to be in breach of any representation, warranty or covenant contained herein to the extent any such representation, warranty or covenant would not have been breached if the Merger had been consummated as contemplated by this Agreement without giving effect to this Section 1.05 and (ii) the Alternative Merger shall in no way reduce, impair or otherwise impact the indemnification of Seller's directors and officers after the Closing as set forth in Section 6.13.
Alternative Merger Structure. If the Tax Free Valuation Test is not met, then the parties shall restructure the transaction to provide only for the Step One Merger, with the Company being the ultimate surviving entity in the Merger, any reference to “Surviving Company” in this Agreement shall mean the Company, as the surviving entity of the Merger, and any reference to “Mergers” in this Agreement shall mean “Merger.”
Alternative Merger Structure. Notwithstanding any other provision of this Agreement, if (i) either of the conditions specified in Section 7.4 fails to be duly satisfied or waived or (ii) at any time prior to the Effective Time, Parent reasonably determines in good faith that effecting the Merger as a merger of the Company into Merger Sub with Merger Sub surviving would result in a material risk of materially adverse regulatory or other materially adverse consequences, the transactions contemplated herein shall be effected (subject to other conditions contained herein) by merging the Company with a Delaware corporation wholly owned by Parent, with the Company as the surviving corporation (the "Alternative Merger"). In such event, the conversion of the outstanding Company securities will occur as provided in this Article, and following the Effective Time all outstanding stock of the surviving corporation will be owned by Parent. The other provisions of this Agreement will continue to apply in the event of the Alternative Merger, mutatis mutandis.
Alternative Merger Structure. Parent shall have the right, in its sole discretion, to revise the structure of the Merger in order to provide that Merger Sub will merge with and into the Company; provided, however, that Parent shall not have the right to make any such revision, if such revision would prevent Parent, Merger Sub and/or the Company from complying with the covenant set forth in Section 6.12 and satisfying the condition set forth in Section 7.1(g).
Alternative Merger Structure. (a) Notwithstanding anything in this Agreement to the contrary, in the event that counsel for ev3 or FoxHollow is unable to deliver the tax opinion set forth in the closing conditions in Sections 6.2(e) and 6.3(c), respectively, ev3 shall effect the Second Merger, as described in Section 1.4(b), provided that such counsel has indicated that assuming the Second Merger will be effected, such counsel will be able to deliver such tax opinion.
Alternative Merger Structure. Notwithstanding any other provision of this Agreement to the contrary, the parties hereto agree that the Company may, at any time prior to the occurrence of the events referred to in clauses (i) and (ii) of Section 2.01(b), elect by serving a written notice to Parent to effect the Merger as a merger of the Company with and into Merger Sub with Merger Sub as the surviving entity in the merger so long as such election does not delay the Merger, adversely affect the Financing or adversely affect the stockholders or directors of Parent. In such event, the parties hereto agree that they will amend this Agreement to reflect the structure of that alternative merger while maintaining, as closely as possible, the substance of the agreements herein (except for the economic substance, which shall remain the same).
Alternative Merger Structure. Notwithstanding anything else in this Agreement to the contrary, at Parent’s request, the Company and the Selling Parties will agree to amend such provisions of this Agreement as are necessary to provide that, in lieu of effecting the Merger as described in Section 2.1, (i) Parent shall form a wholly-owned subsidiary corporation (“Merger Corp”), (ii) Merger Corp shall be merged with and into the Company at the Effective Time and the separate corporate existence of Merger Corp shall thereupon cease and the Company shall continue as the surviving company, and (iii) promptly thereafter, Parent will cause the Company to merge with and into Merger Sub and the separate corporate existence of the Company shall thereupon cease and Merger Sub shall be the Surviving Company (collectively, clauses (i), (ii) and (iii) hereof, the “Alternative Structure”); provided that no such amendment shall (a) change the Merger Consideration to be received by the Stockholders, the Interests Purchase Consideration to be received by the Holders, or the intended tax treatment thereof, (b) prevent or materially delay the Closing or (c) violate any Law. The parties hereto intend that, if Parent elects to effect the Alternative Structure, the steps described in clauses (i), (ii) and (iii) hereof, taken together, are to be treated as a “reorganization” under Section 368(a) of the Code (to which each of Parent and the Company are to be “parties to the reorganization” under Section 368(b) of the Code) in which the Company is to be treated as merging directly with and into Parent.
Alternative Merger Structure. If a decrease in the trading price of Parent Shares results in the aggregate share consideration to be received by the Company Shareholders on the Closing Date pursuant to Section 2.1 representing less than 40.0% of the value of the aggregate Merger Consideration, the requirement to obtain the opinions required by Sections 7.2(c) and 7.3(c) shall be waived and the transaction contemplated by this Agreement shall be restructured such that (a) Merger Sub or a wholly-owned Subsidiary of Merger Sub shall merge with and into the Company, (b) the separate corporate existence of Merger Sub or the Subsidiary of Merger Sub, as applicable, shall cease, and (c) the Company shall continue as the surviving corporation of the Merger. The parties hereto agree and acknowledge that the transaction as restructured by this Section 1.6 may not qualify as a tax-free reorganization under the Code.
Alternative Merger Structure. While it is currently contemplated that the Merger shall be effected through the merger of Company with and into Sub, Buyer shall have the option, in its sole discretion, to cause the Merger to be effected through an alternative transaction structure with Buyer or another Subsidiary of Buyer whereby Buyer, such alternative Subsidiary or the Company may be the acquiror or the Surviving Corporation (the "Alternative Transaction"), in which case the appropriate technical provisions of this Agreement, the Company Ancillary Agreements (as defined below) and the Buyer Ancillary Agreements (as defined below) shall be deemed to be amended as necessary in order to effect the Alternative Transaction. If Buyer desires to effect the Alternative Transaction, it shall deliver a notice to Company of its election to do so. Notwithstanding the foregoing, in the event that such alternative structure would adversely affect the Merger consideration, -------------------------------------------------------------------------------- AGREEMENT AND PLAN OF MERGER 3 or the tax free nature thereof, to be paid hereunder, the consent of the Company will be required to effect the Merger other than as described in Section 1.3.
