This excerpt taken from the PRE 8-K filed Jul 9, 2009.
Tangible Book Value Per Share Differential” means the absolute value of the difference, expressed as a percentage, between the percentage decline in the Company’s Tangible Book Value Per Share from March 31, 2009 to the Measurement Date over the percentage decline of Parent’s Tangible Book Value Per Share during the same period.
(iii) The Company’s and Parent’s Tangible Book Value Per Shares at March 31, 2009 shall be equal to the Tangible Book Value Per Shares of the Company and Parent set forth on Exhibit B-1 and Exhibit B- 2, respectively, and the Company’s and Parent’s Tangible Book Value Per Shares at the Measurement Date shall be equal to the Tangible Book Value Per Shares of the Company and Parent as finally determined pursuant to Sections 2.06(b) and (c), as the case may be.
(iv) If the Company or Parent has experienced an increase in Tangible Book Value Per Share from March 31, 2009 to the Measurement Date, such Person shall be deemed to have experienced no decrease in its Tangible Book Value Per Share.
(v) Each party’s Tangible Book Value Per Share shall be appropriately adjusted for any stock split, combinations, stock dividends, recapitalizations or similar events occurring after March 31, 2009 and on or prior to the Measurement Date in order to eliminate the effect of any such events in the determination of the relative change in such party’s
Tangible Book Value Per Share from March 31, 2009 to the Measurement Date.
(vi) For purposes of calculating each party’s Tangible Book Value Per Share, (x) any issuance of Company Securities or Parent Securities after March 31, 2009 shall be disregarded (in both the numerator and denominator of the calculation thereof), other than (A) any issuance in connection with the exercise of options or other equity awards to purchase Company Shares or Parent Shares, as applicable, granted under the Company’s or Parent’s share option or compensation plans or arrangements, and any issuance of options, other equity awards or shares pursuant to any such plans or arrangements subject to and in accordance with the terms of this Agreement, (B) any issuance upon the exercise or conversion of any Company Securities or Parent Securities convertible into, or exchangeable for, Company Shares or Parent Shares, as applicable, that are outstanding on the date hereof and (C) any issuance under Parent’s existing Forward Sale Agreement, dated October 2005, as amended, in connection with the forward sale of approximately 3.4 million Parent Shares to an affiliate of Citigroup Global Markets Inc., as in effect on the date hereof, and (y) the effects of any accrual for, payment of, or hedging transaction in respect of, the Share Capital Repayment shall be disregarded. For the avoidance of doubt, any dividend paid or accrued by Parent between March 31, 2009 and the Measurement Date shall have the effect of reducing Parent’s Tangible Book Value Per Share as of the Measurement Date.
(vii) Set forth on Exhibit C are illustrative examples of the adjustment contemplated by this Section 2.06.
Section 2.07. Post-Closing Dividend Adjustment. If Parent shall declare a cash dividend or other cash distribution on the Parent Shares with a record date on or after the Closing Date (as defined in the Securities Purchase Agreement) and prior to the earliest date on which shareholders of the Company have the right to receive payment for Company Shares tendered in the Offer, then the Per Share Consideration shall be adjusted upwards by an amount equal to (a) the U.S. dollar amount of such dividend or distribution paid by Parent with respect to a Parent Share times (b) the Per Share Consideration (after giving effect to any prior adjustment) divided by (c) the Market Value (with the 20-day trading period set forth in the definition thereof decreased to five trading days) of a Parent Share as of the record date with respect to such cash dividend or other cash distribution.
Section 3.01. Compulsory Merger. Provided that this Agreement shall not have been terminated in accordance with Section 10.01, as soon as practicable after Purchaser and its Affiliates own at least 90% of the outstanding Company Shares, the parties hereto shall take all necessary and appropriate action, including seeking and the Company recommending the approval of the shareholders of the Company, to cause a merger (the “