Dividend Recovery - Equity Derivatives Provision

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2002 ISDA Equity Derivatives Definitions

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Dividend Recovery in a Nutshell

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Dividend Recovery in all its glory

Dividend Recovery: If:
(i) the amount actually paid or delivered by an Issuer to holders of record of the relevant Share in respect of any Qualifying Dividend declared by such Issuer (a “Declared Dividend”) to holders of record of such Share is not equal to such Declared Dividend (a “Dividend Mismatch Event”); or
(ii) such Issuer fails to make any payment or delivery in respect of such Declared Dividend by the third Business Day following the relevant due date, then the Calculation Agent may (but need not) determine any appropriate correction or repayment to be made by a party to account for such Dividend Mismatch Event or non-payment or non-delivery, as the case may be, and determine the date any such repayment should be made, together with interest on such repayment amount as determined by the Calculation Agent.

The parties expressly acknowledge and agree that the provisions of this section (Dividend Recovery) shall apply and remain in full force and effect notwithstanding the fact that the Termination Date has occurred.

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You may see this kind of malarkey in a Equity Derivatives Master Confirmation. To be clear, the ISDA version is lifted from the 2002 ISDA Equity Derivatives User’s Guide, not the 2002 ISDA Equity Derivatives Definitions themselves, so here you have not only the nutshell version, but below, an even less nutty version. Or more nutty, depending on your view as you read on.

This is a patch job to correct what looks to be a blip in the 2002 ISDA Equity Derivatives Definitions about the timing and payment of Dividend Amounts


How the dividend cycle interacts with the Dividend Periods in the 2002 ISDA Equity Derivatives Definitions.

Careful: it’s (meant to be) about timing, not amount

So what is the difference betwixt a Record Amount, Paid Amount and Ex Amount? To be clear, it is not about whether you get paid, nor how much, but when. A Dividend Amount is a Dividend Amount: in each case “100%[1] of the gross cash dividend per Share”, end of the day. What this is all to do with is when a Dividend Amount is deemed to occur, which in turn is a function of which Dividend Period the trigger for the dividend falls in.

Hang on a minute. “Paid”? Is that, like, different to “declared”? On purpose?

Is Paid Amount meant to be different from Record Amount or Ex Amount, in referencing not what is declared, but what the Issuer actually physically, real-world, paid out?

On one hand, on a natural reading it seems so: Record Amount and Ex Amount specify an amount by reference to the amount “declared by the Issuer to holders of record of a Share”, whereas Paid Amount references the amount “paid by the Issuer during the relevant Dividend Period to holders of record”. On the other hand there’s no sensible reason for supposing an Equity Amount Payer would want to keep the risk of solvency of an Issuer if it pays early[2] but not have it if it pays on the payment date. Examination of the world wide web seems to offer little help.

But here’s a common-sense explanation. Remember the timing of the dividend process: first it is declared, then, a short settlement cycle before the record date the share trades “ex-div” (this is the “ex date”), and only then, two or three weeks after the record date, is the actual Dividend Payment Date. And remember this whole farrago is to determine in which Dividend Period the Dividend Amount gets paid.

Now, if you chose Ex Amount, your Cash Settlement Payment Date may well fall before the actual Dividend Payment Date, in which case it doesn’t make sense to talk about the dividend paid by the issuer, because it won’t have been paid yet. If you selected Paid Amount, the Cash Settlement Payment Date necessarily will fall after the Dividend Payment Date, so it is safe to talk about the dividend having been paid. Because it must have been — and in the disaster scenario where it hasn’t — ie, the corporate failure of the underlying issuer — the Equity Amount Payer won’t want to be paying out a Dividend Amount anyway.

But as for the very good question why would any equity derivative purport to pay out a Dividend Amount before the actual real-world payment date for the Dividend it is synthetically replicating? This is a question only ISDA’s crack drafting squad™ would be placed to answer, and they’re not talking.

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  • The JC’s famous Nutshell summary of this clause

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  1. Or whatever other percentage you agree, of course.
  2. or ever, really: that defeats the purpose of an equity derivative