Common use of Alternative Merger Structure Clause in Contracts

Alternative Merger Structure. Notwithstanding any other provision of this Agreement, if 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 closing conditions set forth in Section 7.02(e) and Section 7.03(c), without any waiver thereof. In such event, the Company shall be the Surviving Entity, the conversion of the outstanding Company securities will occur as provided in the following Article, and each issued and outstanding share of capital stock of Corporate Merger Subsidiary shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Entity in the Reverse Merger. The other provisions of this Agreement will continue to apply in the event of the Reverse Merger, mutatis mutandis (with all references to Merger Sub deemed to mean the Corporate Merger Subsidiary). Notwithstanding anything to the contrary set forth in this Section 1.08, no revision to the structure of the transactions contemplated hereby shall (i) result in any change in the Merger Consideration, (ii) 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 1.08.

Alternative Merger Structure. (a) Notwithstanding any other provision of this Agreement, if requested all of the conditions set forth in writing Article VII have been fulfilled or waived (other than those conditions that by Parent their terms are satisfied at least three business days or immediately prior to Closing) other than 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 closing conditions set forth in Section 7.02(e7.2(e) (CME Group Tax Opinion) and Section 7.03(c7.3(d) (NYMEX Holdings Tax Opinion), without any waiver thereof. In such eventand 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 Company shall 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 EntityCorporation 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 Company securities will NYMEX Holdings Common Securities shall occur as provided in Article I and Article II, except that CME Group shall have the following Articleoption, in its sole discretion, to convert each Stock Election Share and each issued No Election Share into a Cash Election Share and outstanding share of capital stock of Corporate Merger Subsidiary shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share, to increase the amount of the Surviving Entity in Available Cash Consideration up to the Reverse Mergeramount of the Aggregate Merger Consideration. The other provisions of this Agreement will shall continue to apply in the event of the a Reverse Merger, mutatis mutandis (with all references to Merger Sub mutandis, except that the Parties hereto shall be deemed to mean have waived the Corporate Merger Subsidiaryconditions set forth in Section 7.2(e) (CME Group Tax Opinion) and Section 7.3(d) (NYMEX Holdings Tax Opinion). . (b) Notwithstanding anything to the contrary set forth in this Section 1.081.13, no revision to the structure of the transactions contemplated hereby shall (i) result in any change in the amount of the Per Share Cash Consideration or the amount of the Aggregate Merger Consideration, (ii) be materially adverse detrimental to the interests of ParentCME Group, the CompanyNYMEX Holdings, NYMEX, Merger Sub, the holders of shares of Parent CME Group Common Stock or the holders of shares of Company NYMEX Holdings Common StockSecurities, or (iii) unreasonably impede or materially delay consummation of the Merger. The parties Parties agree to amend this Agreement to the extent necessary to provide for more specific mechanics of adjustments as may be required to implement the alternative structure described in this Section 1.081.13.