Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain: (i) the date, which shall be not less than 20 or more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date"); (ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised; (iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b); (iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and (v) the instructions a Holder must follow to exercise the Merger Early Settlement right. (b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount"). (c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment. (d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12. (e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 2 contracts
Samples: Purchase Contract Agreement (Xl Capital LTD), Purchase Contract Agreement (Xl Capital LTD)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase DateCommencing August 15, in the event of a 2002, upon any amalgamation, arrangement, consolidation, merger or consolidation of other reorganization event with respect to the Company of the type described in clause (1ii) of Section 5.6(b8.03(b) in which all of the Ordinary Common Shares outstanding immediately prior to such merger or consolidation event are exchanged for or converted into consideration consisting of at least 30% of the value of which (such 30% determination based on a valuation provided by a nationally recognized investment banking firm selected by the Company) consists of cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit Purchase Contract the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Settlement Date (an "Early Settlement Upon Cash Merger" and the date on which such early settlement occurs, which shall occur immediately prior to the Merger Effective Date (as defined below), the "Early SettlementSettlement Upon Cash Merger Date") as provided herein; provided, however, that no Early Settlement Upon Cash Merger shall be permitted if on the Early Settlement Upon Cash Merger Date an effective registration statement under the Securities Act and a related current prospectus covering Common Shares to be delivered in respect of the Purchase Contracts being settled is required under the U.S. federal securities laws but is not available. On or before the fifth Business Day after the consummation of a Cash Merger, the The Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders of Purchase Contracts notice of the occurrence of the any proposed Cash Merger and of the right of Merger Early Settlement Upon Cash Merger arising as a result thereofthereof at least 25 days prior to the date on which the Cash Merger is to become effective (the "Merger Effective Date"). The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral AgentCustodian. Each such notice shall contain:
(i) the date, which shall be not less than 20 or more than 30 calendar days after five Business Days prior to the date of such noticeMerger Effective Date, on by which the Merger Early Settlement will Upon Cash Merger right must be effected exercised (the "Merger Early Settlement Election Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) an explanation of how the Settlement Rate in effect as a result of such Cash Merger and will be calculated, which shall be calculated in accordance with Section 8.01(a) hereof, by substituting for the Applicable Market Value the volume-weighted average trading price of the Common Shares on the NYSE during regular trading hours for the five Trading Days ending on the Trading Day immediately preceding the Merger Election Date or, if the Common Shares are not listed for trading on the NYSE on the Merger Election Date, the market value of the Common Shares on such date as determined by a nationally recognized independent investment banking firm retained for this purpose by the Company (the "Early Settlement Upon Cash Merger Rate");
(iii) to the extent known to the Company, the kind and amount of securities, cash and other property receivable pursuant to the Cash Merger by the Holder upon settlement holders of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicableCommon Shares; and
(viv) the instructions a Holder must follow to exercise the Merger Early Settlement Upon Cash Merger right.
(b) To exercise a Merger the Early Settlement Upon Cash Merger right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Stock Transfer Office on or before 5:00 p.m., New York City time, time on the date Merger Election Date specified in the notice (i) the Certificate(s) evidencing the UnitsUnits or Purchase Contracts, if the Units are held in certificated formas applicable, with respect to which the Merger Early Settlement Upon Cash Merger right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle for Early Settlement Upon Cash Merger on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) payment of any transfer or similar taxes payable in connection with the related Pledged Notes or Pledged Treasury Consideration, in the case issuance of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, Common Shares to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to any person than the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment(if applicable).
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 2 contracts
Samples: Purchase Contract and Unit Agreement (Nortel Networks Corp), Purchase Contract and Unit Agreement (Nortel Networks Corp)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b5.06(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "“Cash Merger"”), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("“Merger Early Settlement"”) as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. For purposes of calculating the Settlement Rate in effect as a result of such Cash Merger, the Daily Amounts will be calculated on each of the 20 consecutive trading days ending on the fifth trading day immediately preceding date of the cash merger. The Company also shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "“Merger Early Settlement Date"”);
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b5.06(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b5.06(b) and as described in the notice to Holders (the "“Merger Early Settlement Amount"”).
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.65.06, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 2 contracts
Samples: Purchase Contract Agreement (Lazard Group Finance LLC), Purchase Contract Agreement (Lazard LTD)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares shares of Common Stock outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares shares of Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 2 contracts
Samples: Purchase Contract Agreement (Unumprovident Corp), Purchase Contract Agreement (Union Planters Corp)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of "Election to Settle Early Early" on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the Treasury ConsiderationPortfolio, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 2 contracts
Samples: Purchase Contract Agreement (Ameren Corp), Purchase Contract Agreement (Hawaiian Electric Industries Inc)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of "Election to Settle Early Early" on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.to
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "“Cash Merger"”), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("“Merger Early Settlement"”) as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "“Merger Early Settlement Date"”);
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of “Election to Settle Early Early” on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "“Merger Early Settlement Amount"”).
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the Treasury ConsiderationPortfolio, in the case of Normal Corporate Units, or Pledged Treasury Securities, in the case of Stripped Treasury Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Northwest Natural Gas Co)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares shares of Common Stock outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "“Cash Merger"”), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("“Merger Early Settlement"”) as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "“Merger Early Settlement Date"”);
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares shares of Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "“Merger Early Settlement Amount"”).
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12. The option to effect Merger Early Settlement may be exercised only with respect to Purchase Contracts underlying Units with an aggregate Stated Amount equal to $1,000 or an integral multiple thereof.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Common Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Share Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");; 63
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Common Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Share Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Platinum Underwriters Holdings LTD)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "“Cash Merger"”), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("“Merger Early Settlement"”) as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "“Merger Early Settlement Date"”);
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of “Election to Settle Early Early” on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "“Merger Early Settlement Amount"”).
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the Treasury ConsiderationPortfolio, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Ameren Capital Trust Ii)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit Security the right to settle the Purchase Contract or Contracts underlying such Unit Security prior to the Fixed-Share Stock Purchase Date or the Variable-Share Stock Purchase Date, as applicable ("Merger Early Settlement") ), as provided herein. Holders exercising their right of Merger Early Settlement with respect to Fixed-Share Purchase Contracts may exercise such right only with respect to Fixed-Share Purchase Contracts underlying SPACES or Separate PACES having an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate Rates in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable or deliverable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Fixed-Share Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable;
(v) a statement to the effect that all or a portion of the kind and amount of cash, securities and other property deliverable by the Holder to settle the Variable-Share Repurchase Contract forming a part of a Separate COVERS will be offset against the Collateral held by the Collateral Agent to secure such Variable-Share Repurchase Contract, as applicable;
(vi) a statement to the effect that, upon simultaneous Merger Early Settlement of both Contracts underlying a SPACES, the Holder of such SPACES shall have no obligation to deliver any cash, securities and other property with respect to its obligations under the Variable-Share Repurchase Contract and instead the Company shall deliver or cause to be delivered, and such Holder shall be entitled to receive for each SPACES, the kind and amount of cash, securities and other property equal to the difference between the Fixed-Share Settlement Rate and the Variable-Share Settlement Rate (or the Fixed Variable-Share Settlement Rate if then in effect), in each case as adjusted pursuant to Section 5.6; and
(vvii) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, Securities with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of "Election to Settle Early Early" on the reverse thereof duly completed and accompanied by (i) with respect to Fixed-Share Purchase Contracts, payment payable to the Company in immediately available funds in an amount (the "Merger Early Settlement Amount") equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Fixed-share Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders and (ii) with respect to Variable-share Repurchase Contracts, subject to Section 5.10(a)(v) and (vi), the "Merger Early kind and amount of cash, securities and other property equal to the Variable-Share Settlement Amount")Rate (or the Fixed Variable-Share Settlement Rate if then in effect) as adjusted pursuant to Section 5.6.
(c) On the Merger Early Settlement Date, the Company shall (i) with respect to SPACES or Separate PACES, (A) subject to Section 5.10(a)(vi), deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Fixed-Share Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Fixed-Share Purchase Contracts for which such Merger Early Settlement right was exercised, and (iiB) cause the related Pledged Notes or Pledged Treasury Consideration, Ownership Interests in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, Strips to be released from the Pledge by the Collateral Agent and (ii) with respect to Separate COVERS, subject to Section 5.10(a)(v) and (vi), cause the Collateral securing the underlying Variable-Share Repurchase Contract to be released from the Pledge by the Collateral Agent, and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to the Fixed-Share Stock Purchase Date or the Variable-Share Stock Purchase Date, as applicable, shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Fixed-Share Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Ownership Interests in the Treasury Consideration or Pledged Treasury Securities, as the case may be, Strips from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related UnitsSecurities, (i) transfer to the Holder the Pledged Notes, Pledged Ownership Interests in the Treasury Consideration or Pledged Treasury Securities, as the case may be, Strips forming a part of such UnitsSecurities, and (ii) if the Holder elects to settle Fixed-Share Purchase Contracts in integral multiples of 1,000 related PACES, transfer to the Holder any remaining treasury strips in the Treasury Portfolio, (iii) if the Holder elects to settle Fixed-Share Purchase Contracts in amounts other than integral multiples of 1,000 related PACES, transfer to the Holder any remaining treasury strips in the Treasury Portfolio that are in integral multiples of $1,000 face amount, but the Agent shall retain the remainder of the treasury strips in the Treasury Portfolio and shall distribute the proceeds of such strips applicable to the Holder's Ownership interest in the Treasury Portfolio as such strips mature, (iv) subject to Section 5.5(b) and the Pledge Agreement, deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12, (v) in the case of Merger Early Settlement of Fixed-Share Purchase Contracts forming a part of SPACES, deliver to the Holder a Separate COVERS Certificate representing a number of Separate COVERS equal to the number of Variable-Share Repurchase Contracts forming a part of the related SPACES and which Variable-Share Repurchase Contracts are not also being settled and (vi) deliver to the Holder a certificate evidencing the Holder's continued entitlement to receive Contract Payments or Deferred Contract Payments substantially in the form of Exhibit H hereto.
(e) Upon Merger Early Settlement of any Variable-Share Repurchase Contracts, and subject to receipt from the Collateral Agent, in the case of Merger Early Settlement of Variable-Share Repurchase Contracts underlying Separate COVERS, of the Collateral securing such Variable-Share Repurchase Contracts, the Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Securities, (i) subject to Section 5.10(a)(v) and (vi), transfer to the Holder such Collateral, if applicable, (ii) deliver to the Holder a certificate evidencing the Holder's continued entitlement to receive Contract Payments or Deferred Contract Payments, substantially in the form of Exhibit H hereto and (iii) in the case of Merger Early Settlement of Variable-Share Repurchase Contracts forming a part of SPACES, deliver to the Holder a Separate PACES Certificate representing a number of Separate PACES equal to the number of Fixed-Share Purchase Contracts forming a part of the related SPACES and which Fixed-Share Purchase Contracts are not also being settled.
(f) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units Securities evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units Securities as to which Merger Early Settlement was not effected.
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Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Datefirst scheduled remarketing date, if we are involved in a consolidation, acquisition or merger, or a sale of all or substantially all of our assets that is scheduled to close not later than eight business days prior to such remarketing settlement date, in each case in which at least 10% of the event consideration received by holders of our common stock consists of consideration that is not common equity, which we refer to as a “cash merger,” then following the cash merger, each holder of a merger or consolidation of stock purchase contract will have the Company of right to accelerate and settle such stock purchase contract early at the type described settlement rate in clause (1) of Section 5.6(b) in which the Ordinary Shares outstanding effect immediately prior to the effective date of such transaction, calculated as described below. We refer to this right as the “cash merger settlement right.” The foregoing paragraph includes a phrase relating to a sale of all or consolidation are exchanged for consideration consisting substantially all of at least 30% cash or cash equivalents (any such event a "Cash Merger")our assets. There is no precise, then established definition of the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the phrase “substantially all” under applicable law. Accordingly, your right to accelerate and settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") stock purchase contract early as provided herein. On or before the fifth Business Day after the consummation a result of a Cash Merger, the Company or, at the request and expense sale of substantially all of our assets may be uncertain. We will provide each of the Company, the Purchase Contract Agent, shall give all Holders holders with a notice of the occurrence completion of the Cash Merger and of the right of Merger Early Settlement arising as a result cash merger within five business days thereof. The Company shall also deliver notice will specify a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the cash merger early settlement date, which shall be not less at least ten business days after the date of the notice but no later than the earlier of 20 or more than 30 calendar business days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on notice or one Business Day two business days prior to the Merger Early Settlement Datefirst day of the next remarketing period, by which the Merger Early Settlement each holder’s cash merger settlement right must be exercised;
(iii) . The notice will set forth, among other things, the Settlement Rate in effect as a result of such Cash Merger settlement rate, the stock purchase date for the early settlement and the kind and amount of securitiesthe cash, cash securities and other property consideration receivable by the Holder holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to settlement. To exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement cash merger settlement right, a Holder shall you must deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 stock purchase contract agent, no later than 4:00 p.m., New York City time, on the date third business day before the specified in cash merger early settlement date, the notice the Certificate(s) certificate evidencing the Units, your Corporate Units or Treasury Units if the Units they are held in certificated form, with respect to which and payment of the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company applicable purchase price in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable any accrued and unpaid contract adjustment payments. So long as the PEPS Units are evidenced by the Company one or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, more global securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance deposited with the terms hereofdepositary, all references herein to Stock Purchase Date shall procedures for early settlement upon a cash merger will also be deemed to refer to such Merger Early Settlement Dategoverned by standing arrangements between the depositary and the stock purchase contract agent. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contractsyou exercise the cash merger settlement right, such Holder shall be entitled we will deliver to receive, you on the Merger Early Settlement Date, specified cash merger early settlement date the aggregate kind and amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a securities, cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from that you would have been entitled to receive if you had settled the Company stock purchase contract immediately before the effective date of the cash merger and received shares of our common stock at the Pledged Notessettlement rate then in effect. The settlement rate then in effect will be the settlement rate described above under “—Purchase of Common Stock,” except that the observation period for determining the applicable market value will be the 20 consecutive trading days ending on the third trading day immediately preceding the effective date of the cash merger. You will also receive the trust preferred securities, Pledged junior subordinated debentures, applicable interest in the treasury portfolio or qualifying treasury securities underlying the Corporate Units or Treasury Consideration or Pledged Treasury SecuritiesUnits, as the case may be. If you do not elect to exercise your cash merger settlement right, from your Corporate Units or Treasury Units will remain outstanding and subject to normal settlement on the Collateral Agentstock purchase date for equity property units, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12defined below under “Anti-dilution Adjustments – Reorganization Events.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.”
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Common Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Share Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Common Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Share Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Platinum Underwriters Holdings LTD)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares Common Stock outstanding immediately prior to such merger or consolidation are is exchanged for consideration consisting of at least 30___% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securitiescash, cash securities and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on at or before 5:00 p.m., New York City time, time on the date specified in the notice notice, the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of "Election to Settle Early Early" on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes Notes, Pledged Treasury Consideration or Pledged Applicable Ownership Interest in the Treasury ConsiderationPortfolio, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office Agent for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration Consideration, Pledged Applicable Ownership Interest in the Treasury Portfolio, or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder countersign and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Pinnacle West Capital Corp)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares shares of Common Stock outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares shares of Common Stock pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to the Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Household International Inc)
Early Settlement Upon Cash Merger. (a) Prior to If there occurs a Cash Merger before the Third Stock Purchase Date, then, at the option of the Holder thereof, Stock Purchase Contracts underlying Common Equity Units may be settled early (“Cash Merger Early Settlement”) in accordance with, and subject to, this Section 5.8; provided, however, that Holders of Common Equity Units may effect Cash Merger Early Settlement pursuant to this Section 5.8 only in integral multiples of eighty (80) Common Equity Units; provided further that upon a Cash Merger Early Settlement of a Common Equity Unit, such Cash Merger Early Settlement shall apply to each remaining Stock Purchase Contract of such Common Equity Unit whose Stock Purchase Date has not occurred before the applicable Cash Merger Early Settlement Date; provided further that no Cash Merger Early Settlement will be permitted pursuant to this Section 5.8 unless, at the time such Cash Merger Early Settlement is effected, there is an effective registration statement under the Securities Act with respect to the securities to be issued and delivered in connection with such Cash Merger Early Settlement, if such a registration statement is required (in the event view of counsel, which need not be in the form of a merger or consolidation of written opinion, for the Company) under the Securities Act. If such a registration statement is so required, the Company covenants and agrees to use commercially reasonable efforts to (i) have in effect such a registration statement covering the settlement of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date Contracts being settled and ("Merger Early Settlement"ii) as provided herein. On or before provide a prospectus in connection therewith.
(b) Within five (5) Business Days of the fifth Business Day after the consummation completion of a Cash Merger, the Company or, at the request and expense shall provide written notice to Holders of the CompanyCommon Equity Units, the Stock Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each Agent of the completion of such Cash Merger, which notice shall containspecify:
(i) the datedate (the “Cash Merger Early Settlement Date”) on which such Cash Merger Early Settlement shall occur, which date shall (1) be not less than 20 or more than 30 calendar at least ten (10) days after the date of such notice; (2) not be later than forty (40) days after the date of such notice; and (3) not be during the period beginning on, on which and including, the Merger Early Settlement will be effected tenth (the "Merger Early Settlement 10th) Business Day immediately preceding any Stock Purchase Date and ending on, and including, such Stock Purchase Date");
(ii) the date, date by which shall be on or one Business Day prior Holders must exercise their right to the effect a Cash Merger Early Settlement Date, by which the Merger Early Settlement right must be exercisedSettlement;
(iii) the Applicable Cash Merger Early Settlement Rate in effect as for each series of Stock Purchase Contracts.
(c) If a result Holder effects a Cash Merger Early Settlement of any of its Stock Purchase Contracts, then such Holder shall be entitled to receive the aggregate amount of any unpaid Contract Payments that have accrued, on such Stock Purchase Contracts, from, and including, the Payment Date immediately preceding the related Cash Merger Early Settlement Date to, but excluding, such Cash Merger and the kind and Early Settlement Date, which amount of securitiesshall, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to in accordance with Section 5.6(b5.8(d);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will , either be offset credited against the amount of cash so receivable upon exercise of otherwise payable by such Holder to effect such Cash Merger Early SettlementSettlement or, except as applicableotherwise required by the Pledge Agreement, be paid, on such Cash Merger Early Settlement Date, to such Holder; andprovided, however, that if such Cash Merger Early Settlement Date occurs after a Record Date and on or before the next Payment Date, then the provisions of Section 5.11(e) shall apply instead of this Section 5.8(c).
(vd) the instructions a Holder must follow In order to exercise the right to effect a Cash Merger Early Settlement right.
with respect to Stock Purchase Contracts, the Holder of the Certificate evidencing the Common Equity Units of which such Purchase Contracts are a part shall, no later than 5:00 p.m. (bNew York City time) To exercise a on the third (3rd) Business Day immediately preceding the applicable Cash Merger Early Settlement rightDate, a Holder shall deliver such Certificate to the Stock Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of “Election to Settle Early Early” form on the reverse thereof duly completed and accompanied by payment (payable to the Company in immediately available funds funds) in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "“Cash Merger Early Settlement Amount"”) equal to (I) the product of (A) the Stated Amount of each Common Equity Unit to be subject to such Cash Merger Early Settlement; and (B) the number of such Common Equity Units to be subject to such Cash Merger Early Settlement, less (II) the aggregate amount of any unpaid Contract Payments on such Stock Purchase Contracts that the Company is required to credit against such amount pursuant to Section 5.8(c).
; provided, however, that if such Common Equity Unit is a Normal Common Equity Unit, then such Holder may, in lieu of such payment, elect (cby checking the appropriate box in such “Election to Settle Early” form) On to have the Pledged Debt Securities forming part of such Normal Common Equity Units transferred to the Company in full satisfaction of such Holder’s obligation to deliver the Cash Merger Early Settlement Amount with respect to such Normal Common Equity Units (an “In Kind Settlement Upon Cash Merger Early Settlement”), in which case (A) the Stock Purchase Contract Agent shall (I) deliver such Pledged Debt Securities, duly endorsed for transfer, to the Company and (II) notify the Collateral Agent of such election and (B) the Company shall, except as otherwise required by the Pledge Agreement, pay, on the applicable Cash Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since on such Stock Purchase Contracts that the immediately preceding Payment Date with respect Company is required to pay to such Purchase ContractsHolder pursuant to Section 5.8(c). The Company shall pay Upon the receipt of such amount as a credit against Certificate and, unless such Certificate indicates that the amount otherwise payable by the Holders to effect such Specified Holder thereof has elected In Kind Settlement Upon Cash Merger Early Settlement and in any remainder in to apply to the form of a cash payment.
(d) Upon Cash Merger Early Settlement of any Purchase Contracts, and subject to receipt of Amount from such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicableHolder, the Stock Purchase Contract Agent shallshall pay to the Company such Cash Merger Early Settlement Amount, the receipt of which payment the Company shall confirm in writing. The Stock Purchase Contract Agent shall then, in accordance with the instructions provided by Pledge Agreement, notify the Collateral Agent that (A) such Holder thereof on has elected to effect a Cash Merger Early Settlement, which notice shall set forth the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part number of such Units, and (ii) deliver Stock Purchase Contracts as to the which such Holder such net cash, securities or other property issuable upon such has elected to effect Cash Merger Early Settlement together with payment and (B) the Stock Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in lieu of any fraction of a sharewriting by the Company, as provided in Section 5.12the related Cash Merger Early Settlement Amount.
(e) In the event that Except as provided in Section 5.11(e), upon a Cash Merger Early Settlement is effected of the Stock Purchase Contracts, the rights of the Holders to receive and the obligation of the Company to pay any Contract Payments (including any accrued and unpaid Contract Payments) with respect to such Stock Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute immediately and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effectedautomatically terminate.
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Common Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Share Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Common Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which 66 such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Share Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Samples: Purchase Contract Agreement (Platinum Underwriters Holdings LTD)
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in In the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares shares of Common Stock outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "“Cash Merger"”), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("“Merger Early Settlement"”) as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or nor more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "“Merger Early Settlement Date"”);
; Table of Contents (ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
Early Settlement Upon Cash Merger. (a) Prior to the Stock Purchase Date, in the event of a merger or consolidation of the Company of the type described in clause (1) of Section 5.6(b) in which the Ordinary Shares outstanding immediately prior to such merger or consolidation are exchanged for consideration consisting of at least 30% cash or cash equivalents (any such event a "Cash Merger"), then the Company (or the successor to the Company hereunder) shall be required to offer the Holder of each Unit the right to settle the Purchase Contract underlying such Unit prior to the Stock Purchase Date ("Merger Early Settlement") as provided herein. On or before the fifth Business Day after the consummation of a Cash Merger, the Company or, at the request and expense of the Company, the Purchase Contract Agent, shall give all Holders notice of the occurrence of the Cash Merger and of the right of Merger Early Settlement arising as a result thereof. The Company shall also deliver a copy of such notice to the Purchase Contract Agent and the Collateral Agent. Each such notice shall contain:
(i) the date, which shall be not less than 20 or more than 30 calendar days after the date of such notice, on which the Merger Early Settlement will be effected (the "Merger Early Settlement Date");
(ii) the date, which shall be on or one Business Day prior to the Merger Early Settlement Date, by which the Merger Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger and the kind and amount of securities, cash and other property receivable by the Holder upon settlement of each Purchase Contract pursuant to Section 5.6(b);
(iv) a statement to the effect that all or a portion of the Purchase Price payable by the Holder to settle the Purchase Contract will be offset against the amount of cash so receivable upon exercise of Merger Early Settlement, as applicable; and
(v) the instructions a Holder must follow to exercise the Merger Early Settlement right.
(b) To exercise a Merger Early Settlement right, a Holder shall deliver to the Purchase Contract Agent at the Corporate Trust Office on or before 5:00 p.m., New York City time, on the date specified in the notice the Certificate(s) evidencing the Units, if the Units are held in certificated form, with respect to which the Merger Early Settlement right is being exercised duly endorsed for transfer to the Company or in blank with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment payable to the Company in immediately available funds in an amount equal to the Early Settlement Amount less the amount of cash that otherwise would be deliverable by the Company or its successor upon settlement of the Purchase Contract in lieu of Ordinary Shares pursuant to Section 5.6(b) and as described in the notice to Holders (the "Merger Early Settlement Amount").
(c) On the Merger Early Settlement Date, the Company shall deliver or cause to be delivered (i) the net cash, securities and other property to be received by such exercising Holder, equal to the Settlement Rate or if the Company has fixed the Settlement Rate pursuant to Section 5.1(f), the Fixed Accounting Event Settlement Rate, as adjusted pursuant to Section 5.6, in respect of the number of Purchase Contracts for which such Merger Early Settlement right was exercised, and (ii) the related Pledged Notes or Pledged Treasury Consideration, in the case of Normal Units, or Pledged Treasury Securities, in the case of Stripped Units, to be released from the Pledge by the Collateral Agent and transferred, in each case, to the Corporate Trust Office for delivery to the Holder thereof or its designee. In the event a Merger Early Settlement right shall be exercised by a Holder in accordance with the terms hereof, all references herein to Stock Purchase Date shall be deemed to refer to such Merger Early Settlement Date. If a Holder effects a Merger Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Merger Early Settlement Date, the aggregate amount of any Deferred Contract Adjustment Payments and any accumulated and unpaid Contract Adjustment Payments since the immediately preceding Payment Date with respect to such Purchase Contracts. The Company shall pay such amount as a credit against the amount otherwise payable by the Holders to effect such Specified Merger Early Settlement and in any remainder in the form of a cash payment.
(d) Upon Merger Early Settlement of any Purchase Contracts, and subject to receipt of such net cash, securities or other property from the Company and the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, from the Collateral Agent, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units, (i) transfer to the Holder the Pledged Notes, Pledged Treasury Consideration or Pledged Treasury Securities, as the case may be, forming a part of such Units, and (ii) deliver to the Holder such net cash, securities or other property issuable upon such Merger Early Settlement together with payment in lieu of any fraction of a share, as provided in Section 5.12.
(e) In the event that Merger Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Merger Early Settlement the Company (or the successor to the Company hereunder) shall execute and the Purchase Contract Agent shall authenticate, execute on behalf of the Holder and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Merger Early Settlement was not effected.
Appears in 1 contract
