Tax Periods Beginning Before and Ending After the Closing Date The Company or the Purchaser shall prepare or cause to be prepared and file or cause to be filed any Returns of the Company for Tax periods that begin before the Closing Date and end after the Closing Date. To the extent such Taxes are not fully reserved for in the Company’s financial statements, the Sellers shall pay to the Company an amount equal to the unreserved portion of such Taxes that relates to the portion of the Tax period ending on the Closing Date. Such payment, if any, shall be paid by the Sellers within fifteen (15) days after receipt of written notice from the Company or the Purchaser that such Taxes were paid by the Company or the Purchaser for a period beginning prior to the Closing Date. For purposes of this Section, in the case of any Taxes that are imposed on a periodic basis and are payable for a Taxable period that includes (but does not end on) the Closing Date, the portion of such Tax that relates to the portion of such Tax period ending on the Closing Date shall (i) in the case of any Taxes other than Taxes based upon or related to income or receipts, be deemed to be the amount of such Tax for the entire Tax period multiplied by a fraction the numerator of which is the number of days in the Tax period ending on the Closing Date and the denominator of which is the number of days in the entire Tax period (the “Pro Rata Amount”), and (ii) in the case of any Tax based upon or related to income or receipts, be deemed equal to the amount that would be payable if the relevant Tax period ended on the Closing Date. The Sellers shall pay to the Company with the payment of any taxes due hereunder, the Sellers’ Pro Rata Amount of the costs and expenses incurred by the Purchaser or the Company in the preparation and filing of the Tax Returns. Any net operating losses or credits relating to a Tax period that begins before and ends after the Closing Date shall be taken into account as though the relevant Tax period ended on the Closing Date. All determinations necessary to give effect to the foregoing allocations shall be made in a reasonable manner as agreed to by the parties.
Proceeds from Shares Sold The Custodian shall receive funds representing cash payments received for Shares issued or sold from time to time by the Funds, and shall promptly credit such funds to the account(s) of the applicable Portfolio(s). The Custodian shall promptly notify each applicable Fund of Custodian's receipt of cash in payment for Shares issued by such Fund by facsimile transmission or in such other manner as the Fund and Custodian may agree in writing. Upon receipt of Proper Instructions, the Custodian shall: (a) deliver all federal funds received by the Custodian in payment for Shares in payment for such investments as may be set forth in such Proper Instructions and at a time agreed upon between the Custodian and the applicable Fund; and (b) make federal funds available to the applicable Fund as of specified times agreed upon from time to time by the applicable Fund and the Custodian, in the amount of checks received in payment for Shares which are deposited to the accounts of each applicable Portfolio.
Post-Closing Payments (a) Should Grantor receive any amount arising from, or attributed to, the Grantor Interest (including without limitation amounts related to a Settlement Request) then Grantor shall promptly deliver to Participant an amount equal to such amount less:
(i) any taxes, duties or other amounts required to be paid or withheld by Grantor with respect to those amounts (including without limitation any stamp duty or tax payable with respect to the sale, transfer or other disposition of such securities or other cash or non-cash distributions and any other fees or expenses (including legal fees) paid, payable, reimbursed or reimbursable by Grantor or Administrator in connection with the sale, transfer or other disposition of such securities or other cash or non-cash distributions); and
(ii) any amounts owed by Participant to Grantor or Administrator as of the relevant time ((i) and (ii) together, the “Fees and Expenses”), to Participant pursuant to the wire instructions provided by Participant (which instructions must be with respect to a bank account opened in the name of Participant and must be provided at least five (5) Business Days prior to the date of wiring).
(b) Upon receipt by Grantor of any securities or any other non-cash distributions with respect to the Grantor Interest (including the receipt of ADSs pursuant to a Settlement Request):
(i) in the case of ADSs received pursuant to a Cash Settlement Request or an ADS Settlement Request where Grantor has elected pursuant to Section 5(b)(ii) to fulfill such ADS Settlement Request in cash, Grantor shall use commercially reasonable efforts to sell such ADSs to any person whatsoever at Participant’s expense, in accordance with the provisions of Section 5(b) and distribute the resulting cash to Participant in accordance with Section 6(a);
(ii) in the case of ADSs received pursuant to an ADS Settlement Request other than cases in which Grantor has elected pursuant to Section 5(b)(ii) to fulfill such ADS Settlement Request in cash (or where any Settlement Request cannot be fulfilled in cash), Grantor shall use commercially reasonable efforts to transfer such ADSs (net of the In-Kind Fees and Expenses) to Participant at Participant’s expense, in accordance with the provisions of Section 5(b). “In-Kind Fees and Expenses” means such portion of securities or any other non-cash distributions received by Grantor with respect to the Grantor Interest the value of which is equal to the Fees and Expenses due as of the relevant date. In the case of ADSs, the value of such ADSs shall be calculated by Administrator based on the VWAP Price and in the case of other securities or other non-cash distributions, shall be calculated by Administrator on such basis as it reasonably determines. “VWAP Price” means the value obtained by dividing (A) the aggregate turnover of trading in the ADSs during the five (5) Trading Days immediately before the date Grantor receives the relevant distribution (the “VWAP Period”) by (B) the aggregate trading volume of the ADSs during the VWAP Period provided that if the VWAP Price cannot be calculated in accordance with the preceding formula the VWAP Price shall be determined by Administrator on such basis as it reasonably determines. “Trading Day” means any day on which the ADSs are traded on The NASDAQ Global Market.
The Optional Shares; Option Closing Date In addition, on the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to an aggregate of [•] Optional Shares from the Company at the purchase price per share to be paid by the Underwriters for the Firm Shares. The option granted hereunder may be exercised at any time and from time to time in whole or in part upon notice by the Representatives to the Company, which notice may be given at any time within 30 days from the date of this Agreement. Such notice shall set forth (i) the aggregate number of Optional Shares as to which the Underwriters are exercising the option and (ii) the time, date and place at which the Optional Shares will be delivered (which time and date may be simultaneous with, but not earlier than, the First Closing Date; and in the event that such time and date are simultaneous with the First Closing Date, the term “First Closing Date” shall refer to the time and date of delivery of the Firm Shares and such Optional Shares). Any such time and date of delivery, if subsequent to the First Closing Date, is called an “Option Closing Date,” and shall be determined by the Representatives and shall not be earlier than two or later than five full business days after delivery of such notice of exercise. If any Optional Shares are to be purchased, each Underwriter agrees, severally and not jointly, to purchase the number of Optional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Optional Shares to be purchased as the number of Firm Shares set forth on Schedule A opposite the name of such Underwriter bears to the total number of Firm Shares. The Representatives may cancel the option at any time prior to its expiration by giving written notice of such cancellation to the Company.
Initial Closing Date (a) A meeting has taken place on the Initial Closing Date at the offices of Xxxxx & Xxxxx LLP, 00 Xxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX at which the Seller delivered to the Mortgages Trustee or its representative the following documents:
(i) two originals of the power of attorney dated as at the Initial Closing Date and substantially in the form set out in Schedule 5 hereto, duly executed by the Seller;
(ii) a duly executed assignment of all applicable insurance contracts dated as at the Initial Closing Date and in the form of the Assignment of Insurance Contracts substantially in the form set out in Schedule 8;
(iii) a certificate of a duly authorised officer of the Seller dated as at the Initial Closing Date attaching a copy of the board minute of the Seller authorising its duly appointed representatives to agree the sale of the Portfolio and authorising execution and performance of this Agreement, the Servicing Agreement, the other Transaction Documents to which the Seller is a party (in any capacity) and all of the documentation to be entered into pursuant to this Agreement and confirming that the resolutions referred to therein are in full force and effect and have not been amended or rescinded as at the date of the certificate;
(iv) a duly executed assignment and assignation of rights against third parties comprised in the Initial Portfolio dated as at the Initial Closing Date and in the form of the Assignment of Third Party Rights substantially in the form set out in Schedule 7;
(v) a solvency certificate from an authorised signatory of the Seller dated the Initial Closing Date in a form acceptable to the Mortgages Trustee, Funding 1 and the Funding 1 Security Trustee (each acting reasonably);
(vi) an updated, complete and accurate list of the Loans and their Related Security in the Initial Portfolio which may be provided in a document stored upon electronic media (including, but not limited to, a CD-ROM) in a form acceptable to the Mortgages Trustee, Funding 1 and the Funding 1 Security Trustee (each acting reasonably);
(vii) a Scottish Declaration of Trust in respect of the Scottish Loans and their Related Security in the Initial Portfolio in the form set out in Schedule 13 and with the annexure thereto duly completed, duly executed by the Seller, the Mortgages Trustee and Funding 1; and
(viii) a duly executed data transfer agreement.
(b) The parties hereto acknowledge that completion on the Initial Closing Date of the sale to the Mortgages Trustee of all of the Seller's rights, titles, interests and benefits in and to the Loans and their Related Security comprised in the Initial Portfolio subject to the terms and provisions of the Mortgages Trust Deed shall occur as indicated in this Clause 3, provided that the matters described in Clause 6 and Clause 7.4 shall not occur until the relevant time indicated in Clause 6 or, as applicable, Clause 7.4.
3.2 The Seller undertakes that from the Initial Closing Date until the perfection of the sale in accordance with Clause 6, the Seller shall hold the Title Deeds and Customer Files relating to the Portfolio that are in its possession or under its control or held to its order to the order of the Mortgages Trustee.
3.3 The Seller shall, as soon as reasonably practicable after the sale of the Initial Portfolio on the Initial Closing Date procure that the interest of the Mortgages Trustee is noted by the relevant insurers in relation to each Seller Insurance Policy (applicable at such time).
3.4 Subject to fulfilment of the conditions referred to in Clauses 2.2 and 3.1, the Seller was paid the Initial Purchase Price of £2,505,373,309 by CHAPS transfer (or as the Seller otherwise directed) by the Mortgages Trustee on the Initial Closing Date.
Treatment of Company Equity Awards (i) All options to acquire shares of Company Common Stock and other awards (collectively, “Company Equity Awards”) made under the Company’s stock plans (collectively, the “Company Stock Plans”) prior to the Effective Time, which are outstanding immediately prior to the Effective Time, are identified in Section 4.1(f) of the Company Disclosure Letter.
(ii) In the event a Company Equity Award constitutes a grant of restricted stock and to the extent such award is outstanding immediately prior to the Effective Time (“Company Restricted Stock Award”), such Company Restricted Stock Award shall be deemed to be fully vested as of the Effective Time, and the holder of such Company Restricted Stock Award shall receive the number of shares of Company Common Stock subject to such Company Restricted Stock Award in accordance with the terms and conditions of the applicable Company Stock Plan, including any terms and conditions regarding any Taxes required by Applicable Law to be withheld, if any, with respect to the vesting of such Company Restricted Stock Award.
(iii) In the event a Company Equity Award constitutes a stock option grant and to the extent such award is outstanding during the 30-day period that ends immediately prior to the Effective Time (“Company Stock Option Award”), (A) such Company Stock Option Award shall be deemed to be fully vested and exercisable during such period, and (B) to the extent such Company Stock Option Award is exercised during such period, the holder of such Company Stock Option Award shall receive the number of shares of Company Common Stock subject to such Company Stock Option Award (to the extent exercised) in accordance with the terms and conditions of the applicable Company Stock Plan, including any terms and conditions regarding the payment of the exercise price and any Taxes required by Applicable Law to be withheld, if any, with respect to the exercise of such Company Stock Option Award. To the extent any Company Stock Option Awards remain outstanding and unexercised as of the close of the 30-day period that ends immediately prior to the Effective Time, such Company Stock Option Awards (A) shall be deemed to be fully vested and exercisable and (B) shall be continued and assumed by Parent as of the Effective Time pursuant to their terms (such awards are referred to herein as the “Rollover Awards”); provided, however, that Parent Common Stock shall replace the shares of Company Common Stock subject to such awards pursuant to this Agreement and the exercise price, if any, for such awards, if any, shall be adjusted as provided pursuant to this Agreement.
(iv) The assumption of Rollover Awards shall be made pursuant to this Section 4.1(f), so that at the Effective Time, the applicable Company Stock Plans shall be assumed by Parent (with such adjustments thereto as may be required to reflect the Merger, including the substitution of Parent Common Stock for Company Common Stock thereunder) and the Rollover Awards shall be assumed and adjusted by Parent, subject to the same terms and conditions as set forth in the applicable Company Stock Plans and the applicable award agreements entered into pursuant thereto; provided, however, that for periods beginning immediately following the Effective Time, (A) each Rollover Award shall be exercisable only for that whole number of shares of Parent Common Stock equal to the product (rounded down to the nearest whole share) of the number of shares of Company Common Stock subject to such Rollover Award immediately prior to the Effective Time multiplied by the Exchange Ratio, and (B) the exercise price per share of Parent Common Stock shall be an amount equal to the exercise price per share of Company Common Stock subject to such Rollover Award in effect immediately prior to the Effective Time divided by the Exchange Ratio (the price per share, as so determined, being rounded up to the nearest whole cent); provided, that in no event shall the exercise price per share be less than the par value of Parent Common Stock. For the avoidance of doubt, any exercise of a Rollover Award shall be made in accordance with the terms and conditions of the applicable Company Stock Plan, including any terms and conditions regarding the payment of the exercise price and any Taxes required by Applicable Law to be withheld, if any, with respect to the exercise of such Rollover Award. The adjustments provided in this paragraph with respect to any Rollover Awards shall be and are intended to be effective in a manner which is consistent with Section 424(a) of the Code and the Treasury Regulations thereunder, and, to the extent applicable, Section 409A of the Code and the Treasury Regulations thereunder.
(v) Except as otherwise provided herein or as set forth in Section 4.1(f)(v) of the Company Disclosure Letter, from and after the period that begins as of the date of this Agreement, the Company and its Subsidiaries shall take no action to provide for the extension of the term or exercise period with respect to any Company Equity Award (unless such extension is required under such Company Equity Awards or any applicable employment or change in control agreement pursuant any terms thereunder that are in effect as of the date of this Agreement). To the extent such extension is required under the terms of such Company Equity Awards (or any applicable employment or change in control agreement) or as set forth in Section 4.1(f)(v) of the Company Disclosure Letter, the Company shall, prior to the Effective Time, take all actions (if any) as may be required to cause such extension to occur at the Effective Time and immediately prior to any assumption of the Company Stock Plan by Parent (to the extent permitted under the terms of such Company Stock Plan as of the date of this Agreement).
(vi) Promptly following the Closing Date, Parent shall file with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-8 (or any successor form) covering the shares of Parent Common Stock issuable upon exercise or vesting of the Company Equity Awards, and shall cause such registration statement to remain effective for as long as there are outstanding any such Company Equity Awards. Except as otherwise specifically provided by this Section 4.1(f), the terms of the Company Equity Awards and the relevant Company Stock Plans, as in effect on the Effective Time, shall remain in full force and effect with respect to the Company Equity Awards after giving effect to the Merger and the assumptions by Parent as set forth above. As soon as practicable following the Effective Time, Parent shall deliver to the holders of Rollover Awards appropriate notices stating that such Rollover Awards and such agreements shall have been assumed by Parent and shall continue in effect on the same terms and conditions (subject to the adjustments required by this Section 4.1(f)).
(vii) Nothing in this Section 4.1(f) is intended to release any employee or service provider to the Company from any provisions relating to any non-competition, non-solicitation, or confidentiality provisions (or similar provisions) of any Company Equity Award and any associated damages or forfeitures (the “Equity Award Restrictive Covenants”), which shall survive the Effective Time. The Company shall take such action as may be necessary to ensure the survival of the Equity Award Restrictive Covenants and the succession of Parent to the benefits of the Equity Award Restrictive Covenants.
Tax Periods Ending on or Before the Closing Date Buyer shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Company and the Company Subsidiary for all periods ending on or prior to the Closing Date which are required to be filed (taking into account all extensions properly obtained) after the Closing Date.
The First Closing Date Delivery of certificates for the Firm Shares to be purchased by the Underwriters and payment therefor shall be made at the offices of Xxxxxxxxx & Xxxxxxx LLP (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m. New York City time, on [•], or such other time and date not later than 1:30 p.m. New York City time, on [•] as the Representatives shall designate by notice to the Company (the time and date of such closing are called the “First Closing Date”). The Company hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the First Closing Date as originally scheduled include, but are not limited to, any determination by the Company or the Representatives to recirculate to the public copies of an amended or supplemented Prospectus or a delay as contemplated by the provisions of Section 11.
Company Equity Awards (a) Each option to purchase shares of Company Common Stock that has been granted under the Company Stock Plans (each, a “Company Option”) and that is outstanding and unexercised immediately prior to the Effective Time will, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or the holders thereof, be treated as follows:
(i) as of the Effective Time, each Company Option (whether or not vested) that is outstanding and unexercised immediately prior to the Effective Time and that has a per share exercise price less than the Merger Consideration (an “In-the-Money Option”) will be canceled in exchange for payment to the holder of such In-the-Money Option of an amount in cash equal to (A) the number of shares of Company Common Stock remaining subject to such In-the-Money Option immediately prior to the Effective Time multiplied by (B) the amount by which (x) the Merger Consideration exceeds (y) the per share exercise price for such In-the-Money Option (the “Company Option Cash Out Amount”); and
(ii) each Company Option that is not an In-the-Money Option will be canceled at the Effective Time without payment of any consideration.
(b) As of the Effective Time, each restricted stock unit award subject to time-based or other vesting restrictions that is outstanding under any Company Stock Plan (each, a “Company RSU Award””) immediately prior to the Effective Time, shall, to the extent not vested, become fully vested and then (ii) each such Company RSU Award shall be canceled without any action of the part of any holder or beneficiary thereof in consideration for the right to receive a lump sum cash payment with respect thereto equal to the product of (x) the Merger Consideration and (y) the number of shares of Company Stock represented by such Company RSU Award (the “Company RSU Cash Out Amount”).
(c) All Company Options (whether or not vested) that are outstanding and unexercised immediately prior to the Effective Time, all Company RSU Awards that are outstanding immediately prior to the Effective Time, and rights under the Company Stock Plans, will terminate as of, and contingent upon the occurrence of, the Effective Time (after given effect to this Section 2.3), and, following the Effective Time, no holder of any Company Option, Company RSU Award, or any other rights under the Company Stock Plans will have any right to acquire any equity securities of the Company, its Subsidiaries, or the Surviving Corporation as a result of such holder’s Company Options, Company RSU Awards, or other rights under the Company Stock Plans and the Company shall have no further Liability under or with respect to any such Company Option, Company RSU Awards, or the Company Stock Plans (except as provided pursuant to Section 2.3(a)(i) in respect of In-The-Money Options), or as provided pursuant to Section 2.3(b) in respect of the Company RSU Awards.
(d) Payment of the Company Option Cash Out Amount for each In-the-Money Option and the Company RSU Cash Out Amount for each Company RSU Award is subject to Section 2.7 and will be made as follows: No later than thirty (30) Business Days after the Closing Date, Parent shall, or shall cause the Surviving Corporation to, deliver (through the Surviving Corporation payroll or such other means of payment as Parent may provide) to the holder of any In-the-Money Option or Company RSU Award the applicable Company Option Cash Out Amount or Company RSU Cash Out Amount, net of Tax withholdings. To the extent that such Taxes are so deducted or withheld and paid over to the appropriate Taxing Authority, the amounts thereof will be treated for all purposes hereunder as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Prior to the Effective Time, the Company shall take (or cause there to be taken, as the case may be) all such actions as are necessary to effect the treatment of Company Options and Company RSU Awards provided for under this Section 2.3, under all Contracts governing the terms of all Company Options and Company RSU Awards, and under any other applicable plan or arrangement to which the Company is a party or by which the Company may be bound with respect to such Company Options, Company RSU Awards or the Company Stock Plans, including (A) to accelerate the vesting of any unvested Company Options that are outstanding and unvested immediately prior to the Effective Time and (B) at the request of Parent or as otherwise may be required, sending to any holders of Company Options notices (if drafted and at the request of Parent, subject to reasonable review and approval by the Company, which approval will not be unreasonably withheld, conditioned or delayed) with respect to the treatment of such instruments under this Agreement. The Company shall not send or otherwise make available any notices to any holders of Company Options, or solicit any consents or other approvals from the holders of any Company Options unless and until Parent has reviewed and approved all such notices and related documentation (including any email messages and notifications) to be sent or made available to such holders (which approval may not be unreasonably withheld or delayed), in each case, solely to the extent such notices, consents or approvals relate to the Merger Transaction.
(f) The Company shall promptly take (or cause there to be taken, as the case may be) all such actions as are necessary to ensure that no offering or purchase period commences under the Company ESPP and that no shares of Company Capital Stock are issued under the Company ESPP. Prior to the Effective Time, the Company shall take (or cause there to be taken, as the case may be) all such actions as are necessary to terminate the Company ESPP such that, from and after the time of such termination, the Company shall have no Liability under or with respect to the Company ESPP.
Post-Closing (i) Following the Closing Date, Buyer shall, and shall cause the Acquired Companies to, allow Seller, upon one (1) Business Day’s prior written notice and during normal business hours, through its affiliates, employees and representatives, (x) the right to examine and make copies, at Seller’s expense, of the books and records of the Acquired Companies, and (y) reasonable access to Buyer’s and the Acquired Companies’ employees, in the case of either clause (x) or (y), for the preparation and review of the June Financial Statements and any other action or inquiry related to the procedures set forth in Section 1.4, regulatory and statutory filings, earnings releases, statistical supplements, financial statements (including, but not limited to, the timely preparation pursuant to Seller’s then-current schedule and filing of Seller’s current, quarterly and annual reports on Forms 8-K, 10-Q and 10-K for any post-closing period) and the conduct of any third-party litigation. Parent and Buyer shall cause their, and the Acquired Companies’, affiliates, employees and representatives to (A) reasonably cooperate with Seller in connection with the foregoing and (B) under the supervision of Seller, prepare the June Financial Statements, to the extent not yet prepared and finalized as of the Closing Date, in the ordinary course of the performance of their responsibilities. Buyer shall, and shall cause the Acquired Companies to, maintain the books and records of the Acquired Companies for examination and copying by Seller for a period of not less than six (6) years following the Closing Date or any longer period as mandated by applicable Law, after which, Buyer or the Acquired Companies may destroy such records in their sole discretion. Access to such records shall not unreasonably interfere with the business operations of Buyer, any Acquired Company or any of their respective successors.
(ii) Following the Closing Date, Seller shall allow Buyer, upon one (1) Business Day’s prior written notice and during normal business hours, through its affiliates, employees and representatives, the right to (x) examine and make copies, at Buyer’s expense, of the books and records of Seller retained by Seller and maintained by Seller after the Closing Date; but only to the extent that such books and records relate to the Acquired Companies; and (y) reasonable access to any of Seller’s employees, in the case of either clause (x) or (y), for the review of the June Financial Statements, and any other action or inquiry related to the procedures set forth in Section 1.4, regulatory and statutory filings, earnings releases, statistical supplements, financial statements and the conduct of any third-party litigation. Seller shall cause its affiliates, employees and representatives to reasonably cooperate with Parent and Buyer in connection with the foregoing. Seller shall maintain such books and records for examination and copying by Buyer for a period of not less than six (6) years following the Closing Date or any longer period as mandated by applicable Law, after which, Seller may destroy such records in its sole discretion. Access to such records shall not unreasonably interfere with the business operations of Seller or any of its successors.
