Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than five Business Days after the Effective Date of such Fundamental Change, which shall specify: (i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date; (ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right; (iii) the applicable Settlement Rate and number of Make-Whole Shares; (iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and (v) the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its Corporate Units or Treasury Units if they are held in certificated form, 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the Company. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly notify the Purchase Contract Agent in writing of its receipt of the related Purchase Price, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, that all the conditions necessary for a Fundamental Change Early Settlement by such Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for herein, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement: (i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any; (ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury Units, as the case may be, with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and (iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected. (b) The number of Make-Whole Shares per Purchase Contract deliverable upon a Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 2 contracts
Samples: Purchase Contract and Pledge Agreement (Nisource Inc.), Purchase Contract and Pledge Agreement (Nisource Inc.)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number make-whole amount of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to file such Registration Statement or provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Not less than 20 Business Days prior to the anticipated effective date of a Fundamental Change, but in any event not later than the earlier of (i) two Business Days following the Company’s becoming aware of the occurrence of a Fundamental Change and (ii) the effective date of such Fundamental Change, the Company shall provide notice to Holders and the Purchase Contract Agent of the anticipated effective date of such Fundamental Change. In addition, the Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date effective date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date effective date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date effective date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date;
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) and the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly and notify the Purchase Contract Agent in writing of its receipt of the related Purchase PriceCollateral Agent, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide pursuant to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, in writing that all the conditions necessary for a Fundamental Change Early Settlement by such a Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury UnitsSecurities, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Stanley Black & Decker, Inc.)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to file such Registration Statement or provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date;
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a5.04(a)5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the receipt of which payment the Company shall promptly notify the Purchase Contract Agent confirm in writing of its receipt of the related Purchase Price, and upon receipt of such written confirmation, the writing. The Purchase Contract Agent shall then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, that all the conditions necessary for a Fundamental Change Early Settlement by such Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, ,
(1) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a5.04(a)5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury Units, as the case may be, with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
(i) in the case of a Fundamental Change described in clause (i) of the definition thereof where all holders of the Common Stock receive only Cash in the Fundamental Change, the Cash amount paid per share of the Common Stock; and
(ii) in all other cases, the average of the Closing Prices of the Common Stock for the 10 consecutive Trading Days immediately prior to but not including the Effective Date. The Stock Prices set forth in the first row of the table (i.e., the column headers) shall be adjusted upon the occurrence of any event requiring an anti-dilution adjustment to the Maximum Settlement Rate pursuant to Section 5.11 in a manner inversely proportional to the adjustments to the Maximum Settlement Rate. Each of the Make-Whole Share amounts in the table will be adjusted upon the occurrence of events requiring anti -dilution adjustments to the Maximum Settlement Rate pursuant to Section 5.11 in the same manner and at the same time as the Maximum Settlement Rate as set forth in Section 5.11. March 11, 2021 1.6214 0.8158 0.3461 0.2092 0.0933 0.0000 0.2026 0.3683 0.4935 0.4311 0.3844 0.3436 0.3080 0.2364 0.1832 0.0843 0.0292 February 15, 2022 1.1313 0.5596 0.1820 0.0639 0.0000 0.0000 0.0890 0.2617 0.3924 0.3371 0.2963 0.2614 0.2314 0.1732 0.1321 0.0606 0.0222 February 15, 2023 0.5869 0.3063 0.0529 0.0000 0.0000 0.0000 0.0000 0.1567 0.2872 0.2333 0.1953 0.1645 0.1396 0.0965 0.0703 0.0319 0.0122 February 15, 2024 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 The actual Stock Price and Effective Date applicable to a Fundamental Change may not be set forth on the table, in which case:
(i) if the actual Stock Price is between two Stock Prices on the table or the actual Effective Date is between two Effective Dates on the table, the amount of Make-Whole Shares shall be determined by a straight-line interpolation between the Make-Whole Share amounts set forth for the two Stock Prices and the two Effective Dates on the table based on a 365-day year, as applicable;
(ii) if the Stock Price exceeds $80.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the table above), then the Make-Whole Share amount shall be zero; and
(iii) if the Stock Price is less than $10.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the table above) (the “Minimum Stock Price”), then the Make-Whole Share amount shall be determined as if the Stock Price equaled the Minimum Stock Price, using straight-line interpolation, as described above, if the actual Effective Date is between two Effective Dates on the table. Notwithstanding the foregoing, in no event will the total number of shares of Common Stock issuable upon settlement of a Purchase Contract exceed 5.4854 shares per Purchase Contract (subject to adjustment in the same manner and at the same time as the Maximum Settlement Rate as set forth in Section 5.11).
(c) All calculations and determinations pursuant to this Article 5 shall be made by the Company or its agent, and the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary shall have no responsibility for making, verifying or confirming such calculations or determinations or otherwise with respect to such calculations or determinations under this Agreement or otherwise, and may conclusively presume that such calculations and determinations are correct and conform to the requirements of this Agreement.
Appears in 1 contract
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number make-whole amount of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i5.09(e). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Not less than 20 Business Days prior to the anticipated effective date of a Fundamental Change, but in any event not later than the earlier of (i) two Business Days following the Company’s becoming aware of the occurrence of a Fundamental Change and (ii) the effective date of such Fundamental Change, the Company shall provide notice to Holders and the Purchase Contract Agent of the anticipated effective date of such Fundamental Change. In addition, the Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date effective date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date effective date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date effective date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date;
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) and the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) 5.01 shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly and notify the Purchase Contract Agent in writing of its receipt of the related Purchase PriceCollateral Agent, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide pursuant to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, in writing that all the conditions necessary for a Fundamental Change Early Settlement by such a Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury UnitsSecurities, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i5.09(e). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Stanley Black & Decker, Inc.)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior Prior to the Purchase Contract Settlement Date, then, following upon the occurrence of a Fundamental Change, each then a Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to Unit may settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on Contract, upon the Fundamental Change Early Settlement Date at conditions and in the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07manner set forth below; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Convertible Preferred Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Convertible Preferred Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Not less than 20 Business Days prior to the anticipated effective date of a Fundamental Change, but in any event not later than the earlier of (i) two Business Days following the Company’s becoming aware of the occurrence of a Fundamental Change and (ii) the effective date of such Fundamental Change, the Company shall provide notice to Holders and the Purchase Contract Agent of the anticipated effective date of such Fundamental Change. In addition, the Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date effective date of such Fundamental Change, which shall specify:
, in addition to all of the information contained in the Fundamental Change Company Notice (i) as if shares of Convertible Preferred Stock were outstanding on the date of such notice), the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which date shall be at least 10 ten Business Days after the Effective Date effective date of such Fundamental Change but, subject to the foregoing, but no later than the earlier earliest of (x) 20 Business Days after the Effective Date effective date of such Fundamental Change and (y) (i) one Business Day prior to the first day of the commencement of a Triggered Early Remarketing Period, (iii) one Business Day prior to the first day of the commencement of an Optional Remarketing Period, or (ii) or, if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of (iii) the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, (iv) the Purchase Contract Settlement Date;
Date (ii) such date, the date by which Holders must exercise the “Fundamental Change Early Settlement Right;
(iii) Date”), the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) Holder, including the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon)receivable, if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Paymentssettlement. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders (unless Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Units) and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. If Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Uxxxx, Corporate Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in multiples of 16,000 Corporate Units. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) 5.01 shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to the Purchase Contract Agent at the Corporate Trust Officedeliver, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., no later than 5:00 p.m. (New York City time, ) on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 either (X) in the case of Corporate Units, Notes underlying the Pledged Applicable Ownership Interests in Notes (which delivery may occur through delivery by the Collateral Agent, upon receipt of instructions from the Company, of the Pledged Applicable Ownership Interests in Notes underlying such Holder’s Corporate Units, which the Collateral Agent is hereby authorized to deliver on such Holder’s behalf) or (Y) payment (payable to the Company in immediately available funds) ), in each case in an amount equal to (or having an aggregate principal amount equal to) the aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and receipt of such Notes or payment of such funds, as the case may be, the Purchase Contract Agent shall deliver such Notes to the Company or pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly and notify the Purchase Contract Agent in writing of its receipt of the related Purchase Price, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, that all the conditions necessary for a Fundamental Change Early Settlement by such a Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price or Notes having an aggregate principal amount equal to such Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock Notes underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock Notes or the Pledged Applicable Ownership Interests in the Treasury Portfolio Portfolio, in the case of a Holder of Corporate Units who elected to effect a Fundamental Change Early Settlement by delivering Cash in satisfaction of the payment obligation described above or (2) the Proceeds of the applicable Pro Rata Portions of the Treasury Securities Unit Collateral corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock Notes underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock Notes or applicable Proceeds of the Treasury SecuritiesUnit Collateral, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number one share of shares of Common Convertible Preferred Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if anyper Purchase Contract;
(ii) if the shares Holder has elected to effect the Fundamental Change Early Settlement by delivering Cash in satisfaction of Mandatory Convertible Preferred Stockthe payment obligation described above, the Notes, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of a Pro Rata Portion of the Treasury Securities underlying the Corporate Units or Treasury UnitsUnit Collateral, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby;
(iii) to the extent any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date exceed the applicable Purchase Price, Cash in the amount of such excess; and
(iiiiv) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date or the Triggered Early Settlement Date, as applicable, in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a Fundamental Change Early Settlement All calculations and determinations pursuant to this Article 5 shall be calculated made by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) its agent and the Stock Price in Purchase Contract Agent, the such Fundamental Change. The “Stock Price” Collateral Agent, the Custodial Agent and the Securities Intermediary shall be:have no responsibility with respect to this Agreement.
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Stanley Black & Decker, Inc.)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number make-whole amount of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.115.05(a)(vii), and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.075.09; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the relevant Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Not less than 20 Business Days prior to the anticipated effective date of a Fundamental Change, but in any event not later than the earlier of (i) two Business Days following the Company’s becoming aware of the occurrence of a Fundamental Change and (ii) the effective date of such Fundamental Change, the Company shall provide notice to Holders and the Purchase Contract Agent of the anticipated effective date of such Fundamental Change. In addition, the Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date effective date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date effective date of such Fundamental Change but, subject to the foregoing, but no later than the earlier of (x) 20 Business Days after the Effective Date effective date of such Fundamental Change and (y) one y)one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) or, if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, (ii) the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, (iii) the Purchase Contract Settlement Date;
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) and the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment PaymentsRight. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders (unless Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Units) and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. If Applicable Ownership Interests in the Treasury Portfolio have replaced Applicable Ownership Interests in Notes as a component of the Corporate Units, Corporate Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of such number of Corporate Units as may be determined by the Remarketing Agent(s) upon a Successful Remarketing of Notes, which number shall be provided to a Holder by the Company at the request of such Holder. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) 5.01 shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly and notify the Purchase Contract Agent in writing of its receipt of the related Purchase PriceCollateral Agent, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide pursuant to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, in writing that all the conditions necessary for a Fundamental Change Early Settlement by such a Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price or Notes having an aggregate principal amount equal to such Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock Notes underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock Notes or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock Notes underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock Notes or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred StockNotes, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury UnitsSecurities, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Stanley Black & Decker, Inc.)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit, subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus an additional number make-whole amount of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date, the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate is registered at the close of business on such Record Date relating to the next succeeding Contract Adjustment Payment Date), payable in the manner set forth in Section 5.09(e)(i5.09(e). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date effective date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date effective date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date effective date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date;
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) and the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be; provided that if the Treasury Portfolio has replaced the shares of Convertible Preferred Stock that are components of the Corporate Units, Holders of the Corporate Units may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of such number of Corporate Units as may be determined by the Remarketing Agent upon a Successful Optional Remarketing of the Convertible Preferred Stock, which number shall be provided to a Holder by the Company at the request of such Holder. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) 5.01 shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the Company shall promptly and notify the Purchase Contract Agent in writing of its receipt of the related Purchase PriceCollateral Agent, and upon receipt of such written confirmation, the Purchase Contract Agent shall then provide pursuant to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, in writing that all the conditions necessary for a Fundamental Change Early Settlement by such a Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent, or, in the case of Pledged Applicable Ownership Interests in Convertible Preferred Stock, the Transfer Agent, for distribution by the Purchase Contract Agent or Transfer Agent, as applicableon behalf of the Purchase Contract Agent and pursuant to an instruction from the Purchase Contract Agent substantially in the form of Exhibit S attached hereto, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury UnitsSecurities, as the case may be, related to each Unit with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i5.09(e). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated by the Company and shall be determined by reference to the table below, based on the date on which the Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 1 contract
Samples: Series a Purchase Contract and Pledge Agreement (Dominion Energy Inc /Va/)
Fundamental Change Early Settlement. (a) If a Fundamental Change occurs prior to the Purchase Contract Settlement Date, then, following the occurrence of a such Fundamental Change, each Holder of a Unit, subject to the conditions described and other provisions set forth in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock PricePrice of such Fundamental Change, plus an additional number of shares of Common Stock (such additional number, the “Make-Whole Shares”), if any, subject to adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section 5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a) unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect to covering the issuance of any shares of Common Stock and other securities, if any, to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a Registration Statement is required (as determined by the Company in the view of counsel, which need not be in the form of a written opinion, for the Companyits reasonable judgment) under the Securities Act. If the Company determines in its reasonable judgment that such a Registration Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (x) have in effect a Registration Statement covering the issuance of the Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts being settled and (y) provide a Prospectus in connection therewith, in each case in a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material business transaction or development that has not yet been publicly disclosed, the Company will not be required to file such Registration Statement or provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so). In the event that a Holder seeks to exercise its Fundamental Change Early Settlement Right and the Company determines in its reasonable judgment that a Registration Statement is required to be effective in connection with the exercise of such right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described set forth in this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early Settlement Date shall not be so postponed beyond the Purchase Contract Settlement DateDate (or, if such date is not a Business Day, the next Business Day). If, but for the proviso in the immediately preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement DateDate (or, if such date is not a Business Day, the next Business Day), the Company shall deliver to any Holder on the Purchase Contract Settlement Date (or, if such date is not a Business Day, the next Business Day) the applicable number of Make-Whole Shares in addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were equal to the Stock Price. If a Holder elects a Fundamental Change Early Settlement of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon, if any), with respect to such Purchase Contracts to, but excluding, the Fundamental Change Settlement Date (except when unless the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next succeeding Contract Adjustment Payment Date, in which case (x) such accrued and unpaid Contract Adjustment Payments shall be payable to the Person in whose name a the relevant Certificate is registered at the close of business on such Record Date relating to the next succeeding and (y) such accrued and unpaid Contract Adjustment Payment DatePayments shall not be paid as part of the consideration to settle such Fundamental Change Early Settlement), payable in the manner set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such Holder to effect such Fundamental Change Early Settlement. The Company shall provide each Holder and the Purchase Contract Agent with written notice of a Fundamental Change as soon as practicable after becoming aware of the occurrence of such Fundamental Change but in any after no later than within five Business Days after the Effective Date of such Fundamental Change, which shall specify:
(i) the date on which such Fundamental Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall be at least 10 Business Days after the Effective Date of such Fundamental Change but, subject to the foregoing, no later than the earlier of (x) 20 Business Days after the Effective Date of such Fundamental Change and (y) one Business Day prior to (i) the first day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period or the Optional Remarketing is not successful, the first day of the commencement of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement DateDate (or, if such date is not a Business Day, the next Business Day);
(ii) the date by which Holders must exercise the Fundamental Change Early Settlement Right;
(iii) the applicable Settlement Rate and number of Make-Whole Shares;
(iv) if not shares of Common Stock, the amount and kind (per share of Common StockPurchase Contract) of the Cash, securities and other consideration receivable by the Holder upon Fundamental Change Early Settlement; and
(v) the amount of accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), if any, that will be paid upon settlement to Holders exercising the Fundamental Change Early Settlement Right and the method by which the Company will pay such Contract Adjustment Payments. Notwithstanding the foregoing, if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice will specify the Purchase Contract Settlement Date (or, if such date is not a Business Day, the next Business Day) as the Fundamental Change Early Settlement Date. Corporate Units Holders and Treasury Units Holders may only effect Fundamental Change Early Settlement pursuant to this Section 5.04(a) in integral multiples of 10 Corporate Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Fundamental Change Early Settlement pursuant to this Section 5.04(a). In order to exercise the right to effect a Fundamental Change Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver to deliver, no later than the Purchase Contract Agent at the Corporate Trust Office, during the period beginning on the date the Company delivers written notice that a Fundamental Change has occurred and ending at 4:00 p.m., New York City time, close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such Certificate evidencing its to the Purchase Contract Agent at the Corporate Units or Treasury Units if they are held in certificated form, Trust Office 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 aggregate Purchase Price corresponding to the number of Purchase Contracts with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity with the Applicable Procedures and the standing arrangements between DTC or such Depositary and the Purchase Contract Agent or the CompanyAgent. Upon receipt of such Certificate and payment of such funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the related Purchase Contracts, the receipt of which payment the Company shall promptly notify the Purchase Contract Agent confirm in writing of its receipt of the related Purchase Price, and upon receipt of such written confirmation, the writing. The Purchase Contract Agent shall then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, that all the conditions necessary for a Fundamental Change Early Settlement by such Holder have been satisfied pursuant to which the Purchase Contract Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price. Upon receipt by the Collateral Agent of the written notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from the Pledge, (1) (x) the Mandatory Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or (y) the Pledged Applicable Ownership Interests in the Treasury Portfolio or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all such Convertible Preferred Stock, Pledged Applicable Ownership Interests in the Treasury Portfolio or Mandatory Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Mandatory Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the Purchase Contract Agent or Transfer Agent, as applicable, for distribution to such Holder in accordance with the terms provided for hereinHolder, in each case free and clear of the Pledge created hereby. If a Holder properly effects an effective Fundamental Change Early Settlement in accordance with the provisions of this Section 5.04(a), the Company will deliver (or will cause and instruct the Purchase Contract Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:
(i) a number of shares of Common Stock (or Exchange Property Units, if applicable) equal to (x) the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price plus (y) the Make-Whole Shares, if any;
(ii) the shares of Mandatory Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or the applicable Proceeds of the Treasury Securities underlying the Corporate Units or Treasury Units, as the case may be, with respect to which the Holder is effecting a Fundamental Change Early Settlement, free and clear of the Pledge created hereby; and
(iii) if so required under the Securities Act, a Prospectus as contemplated by this Section 5.04(a). For the avoidance of doubt, any accrued and unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i). The Corporate Units or the Treasury Units of the Holders who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof. In the event that Fundamental Change Early Settlement is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Fundamental Change Early Settlement, the Company shall execute and upon receipt of an Issuer Order, the Purchase Contract Agent shall execute on behalf of the Holder as its attorney-in-fact, authenticate and deliver to the Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Fundamental Change Early Settlement was not effected.
(b) The number of Make-Whole Shares per Purchase Contract deliverable upon a applicable to Fundamental Change Early Settlement shall be calculated determined by the Company and shall be determined by reference to the table below, based on the date on which the relevant Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock Price” shall be:
Appears in 1 contract
Samples: Purchase Contract and Pledge Agreement (Ugi Corp /Pa/)
