Common use of Alternative Merger Structure Clause in Contracts

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. (a) Notwithstanding any other provision of this Agreement, if all requested in writing by Parent at least three business days prior to the Closing Date, the transactions contemplated hereby shall be effected (subject to the conditions contained herein) by (i) Merger Sub converting into a Delaware corporation (the "Corporate Merger Subsidiary") and (ii) Corporate Merger Subsidiary merging with and into the Company (the "Reverse Merger"), provided that such revision to the structure does not preclude satisfaction 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 closing conditions set forth in Section 7.2(e) (CME Group Tax Opinion7.02(e) and Section 7.3(d) (NYMEX Holdings Tax Opinion7.03(c), and if either counsel to CME Group or counsel to NYMEX Holdings are unable to render without any waiver thereof. In such event, 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 Company 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 MergerEntity, the conversion of the issued and outstanding NYMEX Holdings Common Securities shall Company securities will occur as provided in Article I and Article IIthe following Article, except that CME Group shall have the option, in its sole discretion, to convert each Stock Election Share and each No Election Share issued and outstanding share of capital stock of Corporate Merger Subsidiary shall be converted into a Cash Election Share and to increase the amount become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Available Cash Consideration up to Surviving Entity in the amount of the Aggregate Merger ConsiderationReverse Merger. The other provisions of this Agreement shall will continue to apply in the event of a the Reverse Merger, mutatis mutandis, except that the Parties hereto shall be mutandis (with all references to Merger Sub deemed to have waived mean the conditions Corporate Merger Subsidiary). Notwithstanding anything to the contrary set forth in this Section 7.2(e1.08, no revision to the structure of the transactions contemplated hereby shall (i) result in any change in the Merger Consideration, (CME Group Tax Opinionii) and be materially adverse to the interests of Parent, the Company, Merger Sub, the holders of shares of Parent Common Stock or the holders of shares of Company Common Stock, or (iii) unreasonably impede or delay consummation of the Merger. The parties agree to amend this Agreement to the extent necessary to provide for more specific mechanics of the alternative structure described in this Section 7.3(d) (NYMEX Holdings Tax Opinion)1.08.