Common use of Merger Events Clause in Contracts

Merger Events. In respect of each Merger Event, UBS and the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s Common Stock, as the case may be, shall negotiate in good faith to amend this Agreement to give appropriate effect to such transaction. In the event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Termination Date”), (i) the Execution Period shall terminate on the Termination Date, (ii) the Principal Account shall be reduced on such date by an amount equal to the product of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares as of such date, and (iii) the Settlement Amount shall be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith to be UBS’s total losses and costs in connection with the early termination of this Agreement, including any loss of bargain, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such merger.

Merger Events. Notwithstanding Section 12.1(b) of the Equity Definitions, except for purposes of “Announcement Event” and “Adjustments to Cap Price” below, a “Merger Event” means the occurrence of a “Merger Event” (as defined in the Indenture). Notice of Merger Consideration: In respect of each any Merger Event, UBS Counterparty shall notify the Calculation Agent of (i) if applicable, the weighted average of the kind and amounts of consideration to be received by the Issuer or holders of Shares in any Merger Event who affirmatively make such an election and (ii) the person formed by details of the adjustments made under the Indenture in respect of such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s Common StockMerger Event, as the case may bein each case, shall negotiate immediately upon determination thereof (and in good faith to amend this Agreement to give appropriate effect to such transaction. In the any event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of the Merger Event), and Counterparty shall deliver a copy of the supplemental indenture effecting such transaction adjustments (a “Merger Supplemental Indenture”) as promptly as practicable following execution thereof. Consequences of Merger Events: Notwithstanding Section 12.2 of the Equity Definitions and without limitation of “Termination Date”Adjustment to Cap Price” below, upon the occurrence of a Merger Event, the Calculation Agent shall make the corresponding adjustment to the adjustment under the Indenture in respect of any adjustment under the Indenture to any one or more of the nature of the Shares, the Strike Price, the Number of Capped Note Hedging Units, the Capped Note Hedging Unit Entitlement, the Settlement Date and any other variable relevant to the exercise, settlement or payment or other terms of the Transaction (subject to the provisions set forth under “Settlement Amount” above in respect of any Counterparty Determination); provided that such adjustment shall be made without regard to any Fundamental Change Adjustment or any Discretionary Adjustment; and provided further that the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and provided further that if, with respect to a Merger Event, (i) the Execution Period shall terminate on consideration for the Termination DateShares includes (or, at the option of a holder of Shares, may include) shares (or depositary receipts with respect to shares) of an entity or person that is not a corporation organized under the laws of the United States, any State thereof or the District of Columbia or (ii) Counterparty following such Merger Event will not be a corporation organized under the Principal Account laws of the United States, any State thereof or the District of Columbia or will not be the Issuer following such Merger Event, Cancellation and Payment (Calculation Agent Determination) shall be reduced on such date by an amount equal apply. Nationalization, Insolvency and Delisting: Cancellation and Payment (Calculation Agent Determination); provided that in addition to the product provisions of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s Board of Directors whose good faith determination shall be conclusive and bindingSection 12.6(a)(iii) of the securities and/or property payable Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or distributable upon re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares as of exchange or quotation system, such date, and (iii) the Settlement Amount exchange or quotation system shall thereafter be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith deemed to be UBS’s total losses and costs in connection with the early termination of this Agreement, including any loss of bargain, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such mergerExchange.

Merger Events. In respect of each Merger Event, UBS and the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s Common Stock, as the case may be, shall negotiate in good faith to amend this Agreement to give appropriate effect to such transaction. [In the event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Merger Event Termination Date”), (i) the Execution Period shall terminate on the Merger Event Termination Date, (ii) the Principal Account shall be reduced on such date by an amount equal to the product of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares as of such date, and (iii) the Settlement Amount shall be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith to be UBS’s total losses and costs in connection with the early termination of this Agreement, including any loss of bargainoption value, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such merger.

Merger Events. In respect of each Merger Event, UBS and the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s 's Common Stock, as the case may be, shall negotiate in good faith to amend this Agreement to give appropriate effect to such transaction. In the event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Termination Date”), (i) the Execution Period shall terminate on the Termination Date, (ii) the “Number of Shares” with respect to any Tranche for which a Last Averaging Date has not yet been determined shall be deemed to be “Adjusted Number of Shares” for purposes of Section 3(a)(i), (iii) the “Last Averaging Date” with respect to any Tranche for which a Last Averaging Date has not yet been determined shall be deemed to be the Termination Date for purposes of Section 3(a)(i), (iv) the Principal Account as calculated in Section 3(a)(i) shall be further reduced on such date by an amount equal to the product of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s 's Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares Assumed Short Position as of such date, and (iiiv) the Settlement Amount shall may be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith to be UBS’s total losses and costs in connection with the early termination of this AgreementAgreement resulting solely from changes in the volatility of the Shares and to recover the Merger Consideration. “Merger Consideration” means the product of (i) an amount equal to the fair market value (as determined by the Issuer's Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock on the closing date of the Merger Event, including any loss of bargain, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading positionand (ii) the Assumed Short Position. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such merger.

Merger Events. In respect of each Merger Event, UBS Upon the terms and subject to the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s Common Stock, as the case may be, shall negotiate conditions set forth in good faith to amend this Agreement and subject to give appropriate effect to such transaction. In Section 2.8, at the event that Effective Time, by virtue of the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Termination Date”), (i) the Execution Period shall terminate Merger and without any action on the Termination Datepart of the Company, Subco, Caracara or any Company Shareholder: all issued and outstanding Company Common Shares held by a Company Shareholder (iiother than any Company Common Shares held by the Founders) the Principal Account shall will automatically be reduced on exchanged for such date by an amount number of Resulting Issuer Common Shares equal to the product number of Company Common Shares held by such Company Shareholder; all issued and outstanding Company Common Shares held by each Founder, will automatically be exchanged for such number of Resulting Issuer Proportionate Voting Shares as the number of Company Common Shares held by each such Founder divided by 1,000 (x) an amount rounded down to the nearest whole number); all Company Common Shares to be issued in connection with the conversion of the Company May Convertible Debentures and the Company September Convertible Debentures in connection with the Merger will be automatically exchanged for such number of Resulting Issuer Common Shares equal to the cash and fair market value (as determined by number of such Company Common Shares issued in connection with the Issuer’s Board of Directors whose good faith determination shall be conclusive and binding) conversion of the securities and/or property payable Convertible Debentures; each Company Common Share exchanged for a Resulting Issuer Common Share or distributable upon such transaction in respect of one share of Common Stock and (yResulting Issuer Proportionate Voting Share pursuant to Sections 2.3(a)(i)(ii) the number of Borrowed Shares as of such date, and (iii) the Settlement Amount shall be further adjusted by cancelled; in accordance with the Calculation Agent by terms of the amount certificates representing the Company Warrants, Company Advisory Warrants, Company Consulting and PR Warrants and Company Finder Warrants, each holder of such security shall be entitled to receive (and such holder shall accept) upon the exercise of such holder’s applicable security, in lieu of that number of Company Common Shares to which such holder was theretofore entitled, an equivalent number of Resulting Issuer Common Shares for the Calculation Agent reasonably determines in good faith same aggregate consideration payable therefor. Each Company Warrant, Company Advisory Warrant, Company Consulting and PR Warrant and Company Finder Warrant shall continue to be UBS’s total losses governed by and costs in connection with the early termination of this Agreement, including any loss of bargain, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal be subject to the percentage terms of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of certificates evidencing such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days securities prior to the effective Effective Time; in accordance with the terms of the certificates representing the Company Compensation Warrants, each holder of a Company Compensation Warrant shall be entitled to receive (and such holder shall accept) upon exercise of such holder’s Company Compensation Warrant, in lieu of that number of Company Common Shares and Company Compensation Underlying Warrants to which such holder was theretofore entitled, an equivalent number of Resulting Issuer Common Shares and Resulting Issuer Compensation Underlying Warrants for the same aggregate consideration payable therefor. Each Company Compensation Warrant shall continue to be governed by and be subject to the terms of the certificates evidencing such warrants prior to the Effective Time; in accordance with the terms of the Company Subscription Receipt Debenture Indenture, each holder of a Company Subscription Receipt Debenture shall be entitled to receive (and such holder shall accept): (i) upon the conversion of such holder’s security, in lieu of that number of Company Common Shares and Company Debenture Warrants to which such holder was theretofore entitled, the equivalent number of Resulting Issuer Common Shares and Resulting Issuer Debenture Warrants for the same aggregate consideration payable therefor, or (ii) on the maturity date of the Company Subscription Receipt Debenture or upon redemption of such merger.securities, the amount of cash which such holder would have been entitled to receive pursuant to the terms of the Company Subscription Receipt Debenture. Each Company Subscription Receipt Debenture Indenture shall be governed by and be subject to the terms of the Supplemental Debenture Indenture (as hereinafter defined); in accordance with the terms of the Company Warrant Indenture, each holder of a Company Compensation Underlying Warrant (upon exercise of a Company Compensation Warrant) and a Company Debenture Warrant (upon exercise of a Company Subscription Receipt Debenture) shall be entitled to receive (and such holder shall accept), in lieu of that number of Company Common Shares to which such holder was theretofore entitled, the equivalent number of Resulting Issuer Common Shares for the same aggregate consideration payable therefor. Each Company Compensation Underlying Warrant and Company Debenture Warrant shall be governed by and be subject to the terms of the Supplemental Warrant Indenture (as hereinafter defined); in accordance with the terms of the Company Services Agreements, each advisor to such agreements shall be entitled to receive (and shall accept) at such times as when such shares are issuable to it under the terms of the applicable Company Services Agreement, in lieu of that number of Company Common Shares to which such advisor was theretofore entitled, the equivalent number of Resulting Issuer Common Shares; all Company Options outstanding immediately prior to the Effective Time will be cancelled and exchanged for Resulting Issuer Options on the followingbasis:

Merger Events. In respect of each Merger Event, UBS and the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s 's Common Stock, as the case may be, shall negotiate in good faith to amend this Agreement to give appropriate effect to such transaction. In the event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Termination Date”), (i) the Execution Period shall terminate on the Termination Date, (ii) the Principal Account shall be reduced on such date by an amount equal to the product of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s 's Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares as of such date, and (iii) the Settlement Amount shall be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith to be UBS’s total losses and costs in connection with the early termination of this Agreement, including Agreement resulting from any loss of bargain, cost of funding, or loss or cost option value incurred as a result of its terminating, liquidating, obtaining changes in the volatility of the Shares and to recover all UBS Termination Costs. UBS Termination Cost means the amount equal to the total purchase price paid by UBS for the Shares of Common Stock purchased by UBS to terminate or reestablishing liquidate any hedge long or related short trading positionposition in the Shares. If payment is required of Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cash. The Issuer shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such merger.

Merger Events. In respect of each Merger Event, UBS and the Issuer or the person formed by such consolidation or resulting from such merger or which acquired such assets or which acquires the Issuer’s 's Common Stock, as the case may be, shall negotiate in good faith to amend this Agreement to give appropriate effect to such transaction. In the event that the parties are unable to reach an agreement ten (10) Trading Days prior to the effective date of such transaction (the “Termination Date”), (i) the Execution Period shall terminate on the Termination Date, (ii) the Principal Account shall be reduced on such date by an amount equal to the product of (x) an amount equal to the cash and fair market value (as determined by the Issuer’s Is xxxx'x Board of Directors whose good faith determination shall be conclusive and binding) of the securities and/or property payable or distributable upon such transaction in respect of one share of Common Stock and (y) the number of Borrowed Shares as of such date, and (iii) the Settlement Amount shall be further adjusted by the Calculation Agent by the amount that the Calculation Agent reasonably determines in good faith to be UBS’s total losses and costs in connection with the early termination of this Agreement, including any loss of bargainoption value, cost of funding, or loss or cost incurred as a result of its terminating, liquidating, obtaining or reestablishing any hedge or related trading positionposition contemplated by this Agreement. The Calculation Agent shall respond promptly to all questions raised by the Is xxxx relating to such calculations. If the Is xxxx objects to the adjustments, the Is xxxx shall promptly notify the Calculation Agent and UBS, and the Issuer and the UBS agree to use their good faith best efforts to reach an agreement as to such Settlement Amount. In the further event that the Issuer and UBS are not able to reach an agreement, the Is xxxx and UBS shall appoint a third party with sufficient expertise to determine the calculation of adjustment and such calculations shall be performed in good faith and in a commercially reasonable manner and shall be binding on all parties. The fees and expenses of such expert shall be shared equally by the Issuer and UBS. If payment is required of by Issuer or by UBS to the Issuer in connection with a Merger Event, the Issuer shall have the right, in its sole discretion, to elect (the “Extraordinary Transaction Election”) to satisfy satisfy, or have UBS satisfy, any such payment obligation by Net Share Settlement of this Transaction PROVIDED THAT, in connection with a “Share-for-Combined” Merger Event or “Share-for-Other” Merger Event, the Extraordinary Transaction Election is available to satisfy only the percentage of such payment obligation equal to the percentage of the non-cash consideration over the total Combined Consideration (in the case of a “Share-for-Combined” Merger Event) or total Other Consideration (in the case of a “Share-for-Other” Merger Event). The remaining percentage of such payment obligation must be satisfied in cashthe same form of consideration that the holders of Common Stock are receiving in such Merger Event. The Issuer Is xxxx shall make any election to settle the Transaction by way of Net Share Settlement within two Trading Days of the Announcement Date but in any event not less than twenty Trading Days prior to the effective date of such merger.