Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled ~~Trading~~ Valid Day of the “Conversion ~~Date~~ Date” (as such term is defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such “Conversion ~~Date~~ Date” (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the “Conversion ~~Date~~ Date” for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the “Conversion ~~Date~~ Date” for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the “Conversion ~~Date~~ Date” for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, upon any Make-Whole Conversion in respect of which a “Notice of Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Valid Day of the “Conversion Date” (as such term is defined in the Indenture) for such Make-Whole Conversion, provide written notice (a “Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such “Conversion Date” (such Convertible Notes, the “Make-Whole Convertible Notes”), and the giving of such Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause ‎‎(ii); (B) upon receipt of any such Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Valid Day following the “Conversion Date” for such Make-Whole Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the “Conversion Date” for such Make-Whole Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Number of Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture); provided that the payment in respect of such early termination by Dealer to Counterparty shall not be greater than the product of (x) the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by (2) the Conversion Rate (after taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture), multiplied by (3) the opening price per Share on the Exchange on the “Conversion Date,” as determined by the Calculation Agent in good faith and in a commercially reasonable manner, over (II) the aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent in good faith and in a commercially reasonable manner; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Make-Whole Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the “Conversion Date” for such Make-Whole Conversion, the Number of Options shall be reduced by the Make-Whole Number of Options. (iii) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 6.02 of the Supplemental Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 3 contracts

Sources: Base Call Option Transaction (Intercept Pharmaceuticals Inc), Base Call Option Transaction (Intercept Pharmaceuticals Inc), Base Call Option Transaction (Intercept Pharmaceuticals Inc)

Appears in 3 contracts

Sources: Confirmation (Callaway Golf Co), Confirmation of Call Option Transaction (Callaway Golf Co), Call Option Transaction (Callaway Golf Co)

Appears in 3 contracts

Sources: Call Option Transaction (CyberArk Software Ltd.), Call Option Transaction (CyberArk Software Ltd.), Call Option Transaction (CyberArk Software Ltd.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which ~~a Notice of Conversion~~ an “Exchange Notice” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging Holder: (A) Counterparty shall, within ~~one~~ three Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default ~~with respect to Counterparty~~ occurs under the terms of the ~~Convertible~~ Exchangeable Notes as set forth in Section 6.01 of the Indenture that results in an acceleration of the Exchangeable Notes pursuant to the terms of the Indenture, then ~~such event of default shall constitute~~ an Additional Termination Event ~~applicable to the Transaction~~ shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall ~~be the party entitled to~~ designate an Exchange Business Day as an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Exchange Business Day shall be on or as promptly as reasonable practicable after the occurrence of such acceleration). (iii) Notwithstanding anything to the contrary in this Confirmation, upon any Repurchase Event (as defined below): (A) Counterparty shall, within five Scheduled Trading Days of the ~~occurrence~~ date of ~~an Amendment~~ such Repurchase Event, provide written notice (a “Repurchase Notice”) to Dealer specifying the number of Exchangeable Notes subject to such Repurchase Event (such Exchangeable Notes, the “Repurchased Exchangeable Notes”), and the giving of such Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this clause (iii); (B) upon receipt of any such Repurchase Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Relevant Number of Options”) equal to the lesser of (x) the number of Repurchased Exchangeable Notes and (y) the Number of Options as of the date of such Early Repurchase; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the Relevant Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (Az) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected ~~Party~~Transaction; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Repurchase Event and any exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (By) no adjustments to the Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Exchangeable Notes remain outstanding; and (E) the Transaction shall ~~be the sole Affected Transaction~~ remain in full force and ~~(C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends~~effect, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture except that, as ~~determined~~ of the date of such Repurchase Event, the Number of Options shall be reduced by the ~~Calculation Agent, conforms the Indenture to the description~~ Relevant Number of ~~Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer~~Options.

Appears in 3 contracts

Sources: Base Call Option Transaction (Spansion Inc.), Base Call Option Transaction (Spansion Inc.), Base Call Option Transaction (Spansion Inc.)

Appears in 3 contracts

Sources: Call Option Transaction (Zillow Group, Inc.), Additional Call Option Transaction (Zillow Group, Inc.), Additional Call Option Transaction (Zillow Group, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repurchase Event resulting from the repurchase of any Convertible Notes upon the occurrence of a “Fundamental Change” (as defined in the Indenture) or in connection with an ~~Amendment~~ “Optional Redemption” (as defined in the Indenture), shall notify Dealer in writing of such Repurchase Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (Cy) in the case of a Repurchase Event not described in clause (x) above, Counterparty may notify Dealer ~~shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b)~~ of ~~the Agreement. “Amendment~~ such Repurchase Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, including the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any ~~amendment or supplement~~ such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (x) ~~pursuant to~~ above shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section ~~10.01(h~~9 and Section 10(b) of the ~~Indenture that~~Exchange Act and the rules and regulations thereunder, ~~as determined by the Calculation Agent, conforms the Indenture to the description~~ and in respect of such Convertible Notes Repurchase Notice for a Repurchase Event described in ~~the Offering Memorandum or~~ clause (y) ~~pursuant to~~ above shall not be effective unless it contains the representation by Counterparty set forth in Section ~~14.07~~ 8(f) as of the ~~Indenture), in each case, without the consent~~ date of ~~Dealer.~~such

Appears in 3 contracts

Sources: Base Call Option Transaction (Sarepta Therapeutics, Inc.), Base Call Option Transaction (Sarepta Therapeutics, Inc.), Base Call Option Transaction (Sarepta Therapeutics, Inc.)

Appears in 3 contracts

Sources: Call Option Transaction (SM Energy Co), Confirmation of Call Option Transaction (SM Energy Co), Call Option Transaction (SM Energy Co)

Appears in 3 contracts

Sources: Base Call Option Transaction (CyberArk Software Ltd.), Base Call Option Transaction (CyberArk Software Ltd.), Base Call Option Transaction (CyberArk Software Ltd.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion or Make-Whole Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion or Make-Whole Conversion, as the case may be, provide written notice (an “~~Early~~ Early/Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such ~~Early~~ Early/Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such ~~Early~~ Early/Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than ~~(1)~~ the Applicable Percentage multiplied by ~~(2) the Affected Number of Options, multiplied by (3)~~ (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion or Make-Whole Conversion, as the case may be, and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture that results in the acceleration of Counterparty’s payment obligations under the Convertible Notes pursuant to the terms of the Indenture, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Base Call Option Transaction (Allscripts Healthcare Solutions, Inc.), Base Call Option Transaction (Allscripts Healthcare Solutions, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a an Exchange Notice ~~of Conversion~~ that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of such Affected ~~Convertible~~ Exchangeable Note, multiplied by the ~~Applicable Limit Price,~~ fair market value of one Share on settlement minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default ~~with respect to Counterparty~~ occurs under the terms of the ~~Convertible~~ Exchangeable Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Exchangeable Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty and/or Parent amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the ~~Convertible~~ Exchangeable Notes governing the principal amount, coupon, maturity, repurchase obligation of ~~Counterparty~~Counterparty and/or Parent, any term relating to ~~conversion~~ exchange of the ~~Convertible~~ Exchangeable Notes (including changes to the ~~conversion~~ exchange rate, ~~conversion~~ exchange rate adjustment provisions, ~~conversion~~ exchange settlement dates or ~~conversion~~ exchange conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the ~~Convertible~~ Exchangeable Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~9.01(m) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of ~~Convertible~~ Exchangeable Notes in the Offering Memorandum or (y) pursuant to Section ~~14.07~~ 10.05 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Call Option Transaction (Nabors Industries LTD), Additional Call Option Transaction (Nabors Industries LTD)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to the 45th Scheduled Valid Day immediately prior to the Expiration Date (any such conversion, an “Early ~~Conversion~~ Conversion”) in respect of which a Conversion Notice ~~of Conversion~~ that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty ~~shall~~may, within ~~one~~ two Scheduled Trading ~~Day~~ Days of the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02 of the Indenture (the “Conversion ~~Date~~ Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i) (provided that Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any Early Conversion Notice); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Transaction Confirmation letter agreement dated January 30, 2019 between Dealer and Counterparty (the “Base Call Option Confirmation”)), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, tax redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~10.01(i) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Call Option Transaction (NIO Inc.), Additional Call Option Transaction (NIO Inc.)

Appears in 2 contracts

Sources: Base Call Option Transaction (Vonage Holdings Corp), Base Call Option Transaction (Vonage Holdings Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled ~~Trading~~ Valid Day of the “Conversion ~~Date~~ Date” (as such term is defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such “Conversion ~~Date~~ Date” (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the “Conversion ~~Date~~ Date” for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the “Conversion ~~Date~~ Date” for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the “Conversion ~~Date~~ Date” for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, upon any Make-Whole Conversion in respect of which a “Notice of Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Valid Day of the “Conversion Date” (as such term is defined in the Indenture) for such Make-Whole Conversion, provide written notice (a “Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such “Conversion Date” (such Convertible Notes, the “Make-Whole Convertible Notes”), and the giving of such Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause ‎(ii); (B) upon receipt of any such Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Valid Day following the “Conversion Date” for such Make-Whole Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Make-Whole Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Make-Whole Convertible Notes and (y) the Number of Options as of the “Conversion Date” for such Make-Whole Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Number of Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture); provided that the payment in respect of such early termination by Dealer to Counterparty shall not be greater than the product of (x) the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by (2) the Conversion Rate (after taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture), multiplied by (3) the opening price per Share on the Exchange on the “Conversion Date,” as determined by the Calculation Agent in good faith and in a commercially reasonable manner, over (II) the aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent in good faith and in a commercially reasonable manner; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Make-Whole Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the “Conversion Date” for such Make-Whole Conversion, the Number of Options shall be reduced by the Make-Whole Number of Options. (iii) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 6.02 of the Supplemental Indenture that results in an acceleration of the Convertible Notes pursuant to the terms of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Confirmation (Intercept Pharmaceuticals Inc), Call Option Transaction (Intercept Pharmaceuticals Inc)

Appears in 2 contracts

Sources: Call Option Transaction (KAMAN Corp), Additional Call Option Transaction (KAMAN Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(h)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of ~~such~~ Shares delivered (if any) to the Holder of an Affected Convertible ~~Note~~Note upon conversion thereof, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes (the “Repayment Event Notes”), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the ~~contrary in~~ Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated), and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 2 contracts

Sources: Call Option Transaction (Alteryx, Inc.), Call Option Transaction

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to the 45th Scheduled Valid Day immediately prior to the Expiration Date (any such conversion, an “Early ~~Conversion~~ Conversion”) in respect of which a Conversion Notice ~~of Conversion~~ that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty ~~shall~~may, within ~~one~~ two Scheduled Trading ~~Day~~ Days of the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02 of the Indenture (the “Conversion ~~Date~~ Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i) (provided that Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any Early Conversion Notice); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Transaction Confirmation letter agreement dated January 30, 2019 between Dealer and Counterparty (the “Base Call Option Confirmation”)), if any, that relate to such Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Additional Call Option Transaction Confirmation dated February 13, 2019 between Dealer and Counterparty (the “First Additional Call Option Confirmation”)), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, tax redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~10.01(i) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Call Option Transaction (NIO Inc.), Call Option Transaction (NIO Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a ~~Notice~~ notice of ~~Conversion~~ conversion of Convertible Notes that is effective as to Counterparty (pursuant to the terms of the Indenture) has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty ~~shall~~may, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion ~~Date~~ Date, or, if less, the number of Convertible Notes subject to such Early Conversion that Counterparty elects to be subject to the provisions of this Section 9(i)(i) (such Convertible Notes, the “Affected Convertible Notes”), provided that no such Early Conversion Notice shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) hereunder as of the date of such Early Conversion Notice, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes (the “Conversion Settlement Date”)) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of 21 Include for applicable Dealers. Options” (as defined in the Base Call Option Transaction Confirmation letter agreement, dated [_____], 2025, between Dealer and Counterparty (the “Base Call Option Confirmation”)), if any, that relate to such Affected Convertible Notes]22 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding as if the circumstances related to such Early Conversion had not occurred; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days promptly following any Repayment Event (as defined below), Counterparty (x) in the case of a Repayment Event pursuant to Section 4.02 of the Indenture, shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the number of Convertible Notes subject to such Repayment Event, or, if less in the case of a Repayment Event not described in clause (x) above, the number of Convertible Notes subject to such Repayment Event that Counterparty elects to be subject to the ~~contrary~~ provisions of this Section 9(i)(ii) (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in ~~this Confirmation if an event of default with respect to~~ clause (y) above shall be effective unless it contains the representation by Counterparty ~~occurs under the terms of the Convertible Notes as~~ set forth in Section ~~6.01~~ 8(f) hereunder as of the ~~Indenture, then~~ date of such ~~event of default shall constitute an Additional Termination Event applicable~~ Repayment Notice [; provided further that any “Repayment Notice” delivered to Dealer pursuant to the ~~Transaction and, with respect to such Additional Termination Event, (A) Counterparty~~ Base Call Option Confirmation shall be deemed to be ~~the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date~~ a Repayment Notice pursuant to ~~Section 6(b)~~ this Confirmation and the terms of ~~the Agreement. (iii)~~ such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]23. Notwithstanding anything to the contrary in this Confirmation, the ~~occurrence~~ receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable to the Transaction and~~as provided in this Section 9(i)(ii). Upon receipt of any such Repayment Notice, ~~with respect to~~ Dealer shall promptly designate an Exchange Business Day following receipt of such ~~Additional Termination Event,~~ Repayment Notice (~~A) Counterparty~~ which in no event shall be ~~deemed to be~~ earlier than the ~~sole Affected Party, (B~~related settlement date for the relevant Repayment Event) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ as an Early Termination Date ~~pursuant~~ with respect to ~~Section 6(b)~~ the portion of the ~~Agreement.~~ Transaction corresponding to a number of Options (the “~~Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect~~ Repayment Options”) equal to the lesser of ~~any term~~ (A) the number of ~~the Indenture or the~~ such Convertible Notes ~~governing~~ specified in such Repayment Notice [minus the ~~principal amount~~number of Repayment Options (as defined in the Base Call Option Confirmation), ~~coupon~~if any, ~~maturity, repurchase obligation of Counterparty, any term relating~~ that relate to ~~conversion of the~~ such Convertible Notes (~~including changes to~~ and for purposes of determining whether any Options under this Confirmation or under the ~~conversion rate~~Base Call Option Confirmation will be among the Repayment Options hereunder or under, ~~conversion rate adjustment provisions~~and as defined in, ~~conversion settlement dates or conversion conditions), or any term that would require consent of~~ the ~~holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than,~~ Base Call Option 22 Include in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerAdditional Call Option Confirmation only. 23 Include for Additional Call Option Confirmation.

Appears in 2 contracts

Sources: Call Option Transaction Confirmation (ADTRAN Holdings, Inc.), Call Option Transaction (ADTRAN Holdings, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to the 45th Scheduled Valid Day immediately prior to the Expiration Date (any such conversion, an “Early ~~Conversion~~ Conversion”) in respect of which a Conversion Notice ~~of Conversion~~ that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty ~~shall~~may, within ~~one~~ two Scheduled Trading ~~Day~~ Days of the date on which the Holder (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02 of the Indenture (the “Conversion ~~Date~~ Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i) (provided that Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any Early Conversion Notice); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, tax redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~10.01(i) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 2 contracts

Sources: Base Call Option Transaction (NIO Inc.), Base Call Option Transaction (NIO Inc.)

Appears in 2 contracts

Sources: Base Call Option Transaction (KAMAN Corp), Base Call Option Transaction (KAMAN Corp)

Appears in 2 contracts

Sources: Base Call Option Transaction (Pandora Media, Inc.), Base Call Option Transaction (Pandora Media, Inc.)

Appears in 2 contracts

Sources: Base Call Option Transaction (Pioneer Natural Resources Co), Base Call Option Transaction (Pioneer Natural Resources Co)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the ~~contrary in this Confirmation, the occurrence~~ aggregate principal amount of ~~an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect~~ Convertible Notes subject to such ~~Additional Termination Event~~Repurchase Event (any such notice, ~~(A)~~ a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty ~~shall be deemed to be the sole Affected Party~~of its responsibilities under applicable securities laws, ~~(B) the Transaction shall be the sole Affected Transaction~~ and ~~(C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to~~ in particular Section ~~6(b~~9 and Section 10(b) of the ~~Agreement. “Amendment Event” means that Counterparty amends~~Exchange Act and the rules and regulations thereunder, ~~modifies, supplements, waives or obtains a waiver~~ in respect of ~~any term~~ such Repurchase Event and the delivery of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.such

Appears in 1 contract

Sources: Call Option Transaction (Sarepta Therapeutics, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable to~~ as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the ~~Transaction and,~~ related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to ~~such Additional Termination Event,~~ the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) ~~Counterparty shall be deemed to be~~ the ~~sole Affected Party~~aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000 and (B) the ~~Transaction shall be~~ Number of Options as of the ~~sole Affected Transaction and (C)~~ date Dealer ~~shall be the party entitled to designate an~~ designates such Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatand, as ~~determined by the Calculation Agent, conforms the Indenture to the description~~ of ~~Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.~~such

Appears in 1 contract

Sources: Base Call Option Transaction (Sarepta Therapeutics, Inc.)

Appears in 1 contract

Sources: Call Option Transaction (Encore Capital Group Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a Notice of ~~Conversion~~ Exchange that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the ~~sum of (i) the~~ amount of cash paid ~~(if any) and (ii) the number of Shares delivered~~ (if any) to the Holder (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of such Affected ~~Convertible~~ Exchangeable Note~~, multiplied by the Applicable Limit Price~~, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, announcements, payments, ~~deliveries~~ deliveries, acquisitions or ~~acquisitions by or on behalf of Counterparty~~ other corporate events leading thereto had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default ~~with respect to Counterparty~~ occurs under the terms of the ~~Convertible~~ Exchangeable Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture that results in an acceleration of the Exchangeable Notes, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty shall notify Dealer of such Repurchase Event and the aggregate principal amount of Exchangeable Notes subject to such Repurchase Event (any such notice, a “Exchangeable Notes Repurchase Notice”); provided that any such Exchangeable Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Exchangeable Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Exchangeable Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Exchangeable Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Exchangeable Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Exchangeable Notes specified in such Exchangeable Notes Repurchase Notice, divided by USD 1,000 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected ~~Party~~Transaction, and for the avoidance of doubt, in determining the amount payable in respect of such Repurchase Unwind Payment, the Calculation Agent shall assume that (x) the relevant Repurchase Event and any repurchases, exchanges, adjustments, agreements, announcements, payments, deliveries or other events leading thereto had not occurred, (By) no adjustments to the Exchange Rate have occurred pursuant to any Excluded Provision and (z) the ~~Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement~~corresponding Exchangeable Notes remain outstanding. “~~Amendment~~ Repurchase Event” means that ~~Counterparty amends~~(i) any Exchangeable Notes are repurchased or redeemed (whether pursuant to Sections 15.02, ~~modifies, supplements, waives or obtains a waiver in respect of any term~~ 16.01 and 17.01 of the Indenture or ~~the Convertible Notes governing the principal amount~~otherwise) by Issuer, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), Counterparty or any ~~term that would require consent~~ of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.their respective subsidiaries,

Appears in 1 contract

Sources: Call Option Transaction (LivaNova PLC)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a ~~Notice~~ notice of ~~Conversion~~ conversion under the Indenture that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ ten Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day~~ as promptly as reasonably practicable following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the ~~sum~~ sum, per each $1,000 principal amount of an Affected Convertible Note, of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.Affected

Appears in 1 contract

Sources: Call Option Transaction Confirmation (Hims & Hers Health, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled ~~Trading~~ Valid Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, upon any Make-Whole Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Valid Day of the Conversion Date for such Make-Whole Conversion, provide written notice (a “Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Make-Whole Convertible Notes”), and the giving of such Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause ‎‎(ii); (B) upon receipt of any such Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Valid Day following the Conversion Date for such Make-Whole Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Make-Whole Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Number of Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture); provided that the payment in respect of such early termination by Dealer to Counterparty shall not be greater than the product of (x) the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by (2) the Conversion Rate (after taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture), multiplied by (3) a price per Share determined by the Calculation Agent over (II) the aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent in a commercially reasonable manner; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Make-Whole Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Make-Whole Conversion, the Number of Options shall be reduced by the Make-Whole Number of Options. (iii) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 6.02 of the Supplemental Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Base Call Option Transaction (Keyw Holding Corp)

Additional Termination Events. ~~(i)~~ i. Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty ~~shall~~may, within ~~one~~ ten Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)~~, and the giving of~~ ; provided that such Early Conversion Notice shall contain (x) the representation and warranty that Counterparty is not, on the date thereof, aware of any material non-public information with respect to Counterparty or the Shares and (y) the related conversion settlement date for such Convertible Notes; (B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this ~~clause (i~~Section 9(i)(i); (BC) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (CD) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction; provided~~ Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that ~~the amount~~ is payable ~~with respect~~ by Dealer to ~~such termination shall~~ Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not ~~be greater than (1) the Applicable Percentage multiplied by (2)~~ the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000Party); (DE) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) . Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) . Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.Affected

Appears in 1 contract

Sources: Base Call Option Transaction (GoPro, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (~~A) Counterparty shall be deemed to be the sole Affected Party, (B~~3) the terminated portion of the Transaction ~~shall be~~ were the sole Affected Transaction ~~and~~ (Cand, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer ~~shall be the party entitled~~ to ~~designate an Early Termination Date~~ Counterparty pursuant to this Section ~~6(b~~9(i)(iii) of as if Counterparty were not the ~~Agreement~~Affected Party). “~~Amendment~~ Repurchase Event” means that ~~Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of~~ (i) any ~~term~~ Convertible Notes are repurchased (whether pursuant to Section 15.02 of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less other than ~~100% of the principal amount~~ upon acceleration of the Convertible Notes described in Section 9(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as such term is defined in the Indenture) thereof for any other securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to ~~amend (other than, in each case,~~ any ~~amendment~~ exchange offer or ~~supplement~~ similar transaction; provided that no (x) conversion of Convertible Notes pursuant to the terms of the Indenture nor (y) exchange in lieu of repurchase of Convertible Notes pursuant to Section ~~10.01(h)~~ 15.06 of the Indenture ~~that~~where a designated financial institution pays, in exchange for such Convertible Notes, the related “Fundamental Change Repurchase Price” on the related “Fundamental Change Repurchase Date” (as ~~determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes~~ such terms are defined in the ~~Offering Memorandum or (y~~Indenture) ~~pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer~~shall constitute a Repurchase Event.

Appears in 1 contract

Sources: Base Call Option Transaction (Sarepta Therapeutics, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled ~~Trading~~ Valid Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, upon any Make-Whole Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Valid Day of the Conversion Date for such Make-Whole Conversion, provide written notice (a “Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Make-Whole Convertible Notes”), and the giving of such Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause ‎‎(ii); (B) upon receipt of any such Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Valid Day following the Conversion Date for such Make-Whole Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Make-Whole Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Make-Whole Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Make-Whole Convertible Notes and (y) the Number of Options as of the Conversion Date for such Make-Whole Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Make-Whole Number of Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Option Entitlement that result from corresponding adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture); provided that the payment in respect of such early termination by Dealer to Counterparty shall not be greater than the product of (x) the Applicable Percentage and (y) the excess of (I) (1) the number of Make-Whole Conversion Options, multiplied by (2) the Conversion Rate (after taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Supplemental Indenture), multiplied by (3) a price per Share determined by the Calculation Agent over (II) the aggregate principal amount of such Convertible Notes, as determined by the Calculation Agent in a commercially reasonable manner; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Make-Whole Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Make-Whole Conversion, the Number of Options shall be reduced by the Make-Whole Number of Options. (iii) Notwithstanding anything to the contrary in this Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 6.02 of the Supplemental Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Keyw Holding Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]17 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that no adjustments to the Conversion Rate have occurred pursuant to Section 5.07 of the Indenture); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note,~~ Note (including any cash payable as the result of Section 5.07 of the Indenture (if any)) and (ii)(I) the number of Shares delivered (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any Shares deliverable as the result of Section 5.07 of the Indenture (if any)) multiplied by (II) the Applicable Limit ~~Price~~Price on the Affected Unwind Date (as defined below), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatNote, as determined by the Calculation ~~Agent~~Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to 17 Include in Additional Call Option Confirmation only. the table set forth below (the “Synthetic Instrument AIP Table”) based on the settlement date for the conversion of such Affected Convertible Note (the “Affected Unwind Date”). If the relevant Affected Unwind Date is not listed below, ~~conforms~~ the ~~Indenture~~ Synthetic Instrument Adjusted Issue Price shall be determined by the Calculation Agent by reference to the ~~description~~ Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the Affected Unwind Dates immediately preceding and immediately following the relevant Affected Unwind Date. For the avoidance of ~~Convertible Notes~~ doubt, any payment pursuant to this paragraph shall be subject to Section 10(m). Counterparty shall (i) in the ~~Offering Memorandum or~~ case of any Early Conversion, provide Dealer notice of the number of Shares and amount of cash specified in clause (y3)(x) ~~pursuant to Section 14.07~~ above no later than the Exchange Business Day immediately following the last day of the relevant “Observation Period” (as defined in the Indenture), and (ii) in ~~each case~~the case of a Repayment Event (as defined below), ~~without~~ notify Dealer of the ~~consent~~ amount of ~~Dealer~~the payment by Counterparty pursuant to the relevant sections of the Indenture no later than the Exchange Business Day immediately preceding the date of such payment.

Appears in 1 contract

Sources: Call Option Transaction (Onto Innovation Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a ~~Notice~~ “notice of ~~Conversion~~ Conversion” (as such term is referenced in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]18 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the ~~sum~~ sum, per each $1,000 principal amount of a Note, of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture) and (ii) the number of Shares delivered (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or Convertible Note on ~~behalf of Counterparty leading thereto had not occurred, (y) no adjustments to~~ the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatSettlement Date, as determined by the Calculation ~~Agent, conforms~~ Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the ~~Indenture~~ amount determined by the Calculation Agent by reference to the ~~description of Convertible Notes~~ table set forth below based on the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). 19 If the relevant Conversion Settlement Date is not listed below, the amount in the ~~Offering Memorandum or (y)~~ preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; 18 Include in Additional Call Option Confirmation only. 19 Table to be filled out by calculating the synthetic adjusted issue price of a Convertible Note after giving effect to the integration pursuant to Section ~~14.07~~ 1.1275-6 of the ~~Indenture), in each case, without~~ United States Treasury Regulations of the ~~consent of Dealer~~Transaction (and other call option transactions with respect to such Convertible Note entered into by the Counterparty) and the Convertible Note. 20 To be the maturity date for the Convertible Notes.

Appears in 1 contract

Sources: Call Option Transaction (Solaris Energy Infrastructure, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a Notice of ~~Conversion~~ Exchange that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging “Holder:” (as such term is defined in the Indenture): (A) Counterparty ~~shall,~~ shall within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion,~~ Exchange provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable 20 Include for applicable Dealers. Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i)[; provided that, any “Early Exchange Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Exchange Notice pursuant to this Confirmation and the terms of such Early Exchange Notice shall apply, mutatis mutandis, to this Confirmation]21; (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for the exchange of such ~~Early Conversion~~Affected Exchangeable Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Exchangeable Notes specified in such Early Exchangeable Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]22 and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Exchangeable Note upon exchange of such Affected Exchangeable Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of such Affected ~~Convertible~~ Exchangeable Note, multiplied by (4) the Applicable Limit ~~Price~~Price on the relevant date of payment, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the ~~Conversion Rate~~ “Exchange Rate” (as such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; ~~and~~and 21 Include in Additional Call Option Confirmation only. 22 Include in Additional Call Option Confirmation only. (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default ~~with respect to Counterparty~~ occurs under the terms of the ~~Convertible~~ Exchangeable Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and the Exchangeable Notes are declared due and payable as a result thereof, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty and/or Parent amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the ~~Convertible~~ Exchangeable Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to ~~conversion~~ exchange of the ~~Convertible~~ Exchangeable Notes (including changes to the ~~conversion~~ exchange rate, ~~conversion~~ exchange rate adjustment provisions, ~~conversion~~ exchange settlement dates or ~~conversion~~ exchange conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the ~~Convertible~~ Exchangeable Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~10.01(j) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of ~~Convertible~~ Exchangeable Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Appears in 1 contract

Sources: Base Call Option Transaction (CNX Resources Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a Notice of ~~Conversion~~ Exchange that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i)[; provided that any “Early Exchange Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Exchange Notice pursuant to this Confirmation and the terms of such Early Exchange Notice shall apply, mutatis mutandis, to this Confirmation]21; (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for the exchange of such ~~Early Conversion~~Affected Exchangeable Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Exchangeable Notes specified in such Early Exchange Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]22 and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid ~~(if any) and (ii) the number of Shares delivered (if any)~~ to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of such Affected ~~Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D)~~ Exchangeable Note 20 Include for ~~the avoidance of doubt,~~ applicable Dealers. 21 Insert for Additional Call Option Confirmation. 22 Include in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of OptionsAdditional Call Option Confirmation only. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Federal Realty OP LP)

Appears in 1 contract

Sources: Call Option Transaction (Fiverr International Ltd.)

Appears in 1 contract

Sources: Call Option Transaction (Alkami Technology, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) ~~(x)~~ the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; ~~and~~and 15 Subject to such further updates as individual banks may request. 16 Include in Additional Call Option Confirmation only. (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ [6.01] of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes becoming or being declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days promptly following any Repayment Event (as defined below), Counterparty (x) in the case of a Repayment Event pursuant to Section [15.02]17 of the Indenture or Section [16.01]18 of the Indenture, shall notify Dealer of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer in writing of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty set forth in Section 8(g) hereunder as of the date of such Repayment Notice[; provided, further that, any “Repayment Notice” delivered to Dealer pursuant to the ~~contrary~~ Base Call Option Confirmation shall deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]19. The receipt by Dealer from Counterparty of any Repayment Notice, within the applicable time period set forth in ~~this Confirmation,~~ the ~~occurrence of an Amendment Event~~ preceding sentence shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repayment Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, [minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated),]20 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (~~A) Counterparty shall be deemed to be the sole Affected Party, (B~~3) the ~~Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled~~ 17 Include cross reference to ~~designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver~~ provision in ~~respect of any term of~~ the Indenture ~~or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating~~ providing for holder fundamental change put right. 18 Include cross reference to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, provision in ~~each case, any amendment or supplement (x) pursuant to Section 10.01(h) of~~ the Indenture ~~that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes~~ providing for company optional redemption right. 19 Include for additional call option confirmation only. 20 Include in the ~~Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer~~Additional Call Option Confirmation.

Appears in 1 contract

Sources: Call Option Transaction (Itron, Inc.)

Appears in 1 contract

Sources: Additional Call Option Transaction (Live Nation Entertainment, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion or Make-Whole Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion or Make-Whole Conversion, as the case may be, provide written notice (an “~~Early~~ Early/Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such ~~Early~~ Early/Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such ~~Early~~ Early/Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than ~~(1)~~ the Applicable Percentage multiplied by ~~(2) the Affected Number of Options, multiplied by (3)~~ (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion or Make-Whole Conversion, as the case may be, and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture that results in the acceleration of Counterparty’s payment obligations under the Convertible Notes pursuant to the terms of the Indenture, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Additional Call Option Transaction (Allscripts Healthcare Solutions, Inc.)

Appears in 1 contract

Sources: Base Call Option Transaction (Wix.com Ltd.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion or Make-Whole Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion or Make-Whole Conversion, as the case may be, provide written notice (an “~~Early~~ Early/Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such ~~Early~~ Early/Make-Whole Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such ~~Early~~ Early/Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than ~~(1)~~ the Applicable Percentage multiplied by ~~(2) the Affected Number of Options, multiplied by (3)~~ (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion or Make-Whole Conversion, as the case may be, and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion or Make-Whole Conversion, as applicable, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in in Section 6.01 of the Indenture that results in the acceleration of Counterparty’s payment obligations under the Convertible Notes pursuant to the terms of the Indenture, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Additional Call Option Transaction (Allscripts Healthcare Solutions, Inc.)

Appears in 1 contract

Sources: Call Option Transaction (CSG Systems International Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repurchase Event resulting from the repurchase of any Convertible Notes upon the occurrence of a “Fundamental Change” (as defined in the Indenture) or in connection with an ~~Amendment~~ “Optional Redemption” (as defined in the Indenture), shall notify Dealer in writing of such Repurchase Event and (y) in the case of a Repurchase Event not described in clause (x) above, Counterparty may notify Dealer of such Repurchase Event, in each case, including the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (x) above shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, and in respect of such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (y) above shall not be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Convertible Notes Repurchase Notice; provided further that any “Convertible Notes Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Convertible Notes Repurchase Notice pursuant to this Confirmation and the terms of such Convertible Notes Repurchase Notice shall apply, mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable to the Transaction and~~as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, ~~with respect to~~ Dealer shall designate an Exchange Business Day following receipt of such ~~Additional Termination Event,~~ Convertible Notes Repurchase Notice (~~A) Counterparty~~ which Exchange Business Day shall be ~~deemed to be~~ on or as promptly as reasonably practicable after the ~~sole Affected Party, (B~~related settlement date for the relevant Repurchase Event) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ as an Early Termination Date ~~pursuant~~ with respect to ~~Section 6(b)~~ the portion of the ~~Agreement.~~ Transaction corresponding to a number of Options (the “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes Repurchase Options”) equal to the ~~conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent~~ lesser of (A) (x) the ~~holders of not less than 100% of the~~ aggregate principal amount of ~~the~~ such Convertible Notes ~~to amend (other than,~~ specified in ~~each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of~~ such Convertible Notes ~~in the Offering Memorandum or~~ Repurchase Notice, divided by USD 1,000, minus (y) ~~pursuant to Section 14.07~~ the number of “Repurchase Options” (as defined in the ~~Indenture), in each case, without the consent of Dealer.~~Base

Appears in 1 contract

Sources: Call Option Transaction (Sarepta Therapeutics, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting ~~Holder:~~Holder (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than ~~one Scheduled Trading Day following~~ the ~~Conversion Date~~ settlement date for ~~such Early Conversion~~the conversion of the relevant Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) no amount shall be payable by Counterparty in respect thereof and any payment by Dealer hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation if~~ Confirmation, the occurrence of an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the Indenture, ~~then such~~ which event of default has resulted in the Convertible Notes becoming due and payable under the terms thereof, shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected ~~Transaction and~~ Transaction, (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and (D) no amount shall be payable by Counterparty as a result thereof and any amount payable by Dealer in respect thereof shall be determined pursuant to Section 6 of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected ~~Transaction and~~ Transaction, (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and (D) no amount shall be payable by Counterparty as a result thereof and any amount payable by Dealer in respect thereof shall be determined pursuant to Section 6 of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (xv) pursuant to Section ~~10.01(h~~8.01(B) of the Indenture, (w) pursuant to Section 8.01(I) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering ~~Memorandum or~~ Memorandum, (x) pursuant to Section 8.01(G) of the Indenture, (y) pursuant to Section ~~14.07~~ 5.09 of the ~~Indenture~~Indenture or (z) pursuant to Section 8.01(A) of the Indenture that, as determined by Calculation Agent, cures any ambiguity, omission, defect or inconsistency in the Indenture or in the Convertible Notes), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (PetIQ, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting ~~Holder:~~Holder (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]50 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 48 To be conformed to Indenture term. 49 Include for applicable Dealers. 50 Include in Additional Call Option Confirmation only. (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]51 of the Indenture) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]52 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or Convertible Note on ~~behalf of Counterparty leading thereto had not occurred, (y) no adjustments to~~ the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatSettlement Date, as determined by the Calculation ~~Agent, conforms~~ Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the ~~Indenture~~ amount determined by the Calculation Agent by reference to the ~~description of Convertible Notes~~ table set forth below based on the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). 53 If the relevant Conversion Settlement Date is not listed below, the amount in the ~~Offering Memorandum or (y~~preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; 51 Include cross-reference to Indenture section(s) ~~pursuant~~ governing make-whole adjustments to ~~Section 14.07 of~~ the ~~Indenture), in each case, without~~ Conversion Rate. 52 Include cross-reference to Indenture section(s) governing make-whole adjustments to the ~~consent of Dealer~~Conversion Rate.

Appears in 1 contract

Sources: Call Option Transaction (Crescent Energy Co)

Additional Termination Events. ~~(i)~~ Notwithstanding anything to the contrary in this Confirmation, (i) upon ~~any Early Conversion in~~ the occurrence of an Exchange Date with respect ~~of which~~ to an Induced Exchange or a ~~Notice of Conversion that is effective~~ Corporate Event Exchange, as ~~to Counterparty has been delivered by the relevant converting Holder~~applicable: (A) Counterparty ~~shall,~~ shall within one Scheduled Trading Day ~~of the Conversion Date for such Early Conversion,~~ provide written notice (an “~~Early Conversion~~ Excluded Exchange Notice”) to ~~Dealer~~ JPMorgan specifying the number of ~~Convertible~~ Exchangeable Notes ~~surrendered for conversion~~ exchanged on such ~~Conversion~~ Exchange Date and identifying the related exchanges as Induced Exchanges or Corporate Event Exchanges, as applicable; (B) such ~~Convertible Notes~~Induced Exchange or Corporate Event Exchange, ~~the “Affected Convertible Notes”)~~as applicable, ~~and the giving of such Early Conversion Notice~~ shall constitute an Additional Termination Event hereunder with respect to the number of Options relating to the number of Exchangeable Notes surrendered for exchange in connection with such Induced Exchange or Corporate Event Exchange, as ~~provided~~ applicable, (the “Affected Number of Options”), in ~~this clause~~ which case (i)x) the sole Affected Transaction shall consist of a transaction identical to the Transaction except that Number of Options for such Affected Transaction shall equal the Affected Number of Options and Counterparty shall be deemed the sole Affected Party and (y) the Transaction shall remain in full force and effect, except that the Number of Options subject to the Transaction immediately prior to the Exchange Date for such Induced Exchange or Corporate Event Exchange, as applicable, shall as of such Exchange Date be reduced by the Affected Number of Options; (BC) ~~upon receipt of any such Early Conversion Notice~~notwithstanding anything to the contrary in the Agreement, ~~Dealer~~ JPMorgan shall designate ~~an Exchange Business Day as~~ an Early Termination Date (in respect of such Affected Transaction, which ~~Exchange Business Day~~ shall be no earlier than one Scheduled Trading Day following the ~~Conversion~~ Exchange Date for ~~such Early Conversion) with respect to~~ the ~~portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options~~ related Induced Exchange or Corporate Event Exchange, as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transactionapplicable; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000;and (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (xa) the relevant ~~Early Conversion and~~ Induced Exchange or Corporate Event Exchange, as applicable, had not occurred, (b) in the case of an Induced Exchange, any ~~conversions,~~ adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty or any affiliate of Counterparty leading ~~thereto~~ thereto, had not occurred, (yc) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to ~~any Excluded Provision~~ the second paragraph of Section 13.05(g) or Section 13.10 of the Indenture and (zd) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Strategic Hotels & Resorts, Inc)

Appears in 1 contract

Sources: Call Option Transaction Confirmation (Mirion Technologies, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) the excess of (x) the ~~sum~~ aggregate of (~~i) the amount of cash paid (if any) and (ii~~I) the number of ~~Shares delivered (~~Shares, if any) , delivered to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~opening price as displayed under the heading “Op” on Bloomberg page IPHI <equity> (or any successor thereto) on the date on which such payment is made and (II) the amount of cash, ~~minus~~ if any, paid to the Holder of an Affected Convertible Note upon conversion of such Affected Convertible Note, over (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) ~~Notwithstanding anything to~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation if an event~~ case of ~~default with respect to Counterparty occurs under~~ a Repayment Event resulting from the ~~terms~~ repurchase of ~~the~~ any Convertible Notes by Counterparty upon the occurrence of a “Fundamental Change” (as defined in the Indenture), shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes (the “Repayment Convertible Notes”) subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty set forth in Section ~~6.01~~ 8(f) as of the ~~Indenture~~date of such Repayment Notice; provided further that any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, ~~then such event~~ mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of ~~default~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(h)(ii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the AgreementTransaction. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives~~ (ii) any Convertible Notes are delivered to Counterparty or ~~obtains a waiver~~ any of its subsidiaries in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture or~~ such party (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or~~ for any ~~term that would require consent~~ reason other than as a result of ~~the holders of not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ the following Section 9(h)(iii), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Sources: Call Option Transaction (INPHI Corp)

Appears in 1 contract

Sources: Call Option Transaction Confirmation (Mirion Technologies, Inc.)

Appears in 1 contract

Sources: Call Option Transaction (Imax Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a “Notice of ~~Conversion~~ Exchange” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes]25 and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the “Holder” (~~if any~~as such term is defined in the Indenture) of an Affected Exchangeable Note upon exchange of such Affected Exchangeable Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of ~~such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D)~~ 24 Include for ~~the avoidance of doubt,~~ applicable Dealers. 25 Include in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of OptionsAdditional Call Option Confirmation only. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (SB/RH Holdings, LLC)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A1) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B2) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C3) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(l) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(h)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of ~~such~~ Shares delivered (if any) to the Holder of an Affected Convertible ~~Note~~Note upon conversion thereof, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000; (D4) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E5) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes, Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the ~~contrary in~~ Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated), and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 1 contract

Sources: Call Option Transaction (Liveperson Inc)

Appears in 1 contract

Sources: Base Call Option Transaction (Liveperson Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting ~~Holder:~~Holder (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i);; 46 Include for applicable Dealers. (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]46 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]47 of the Indenture) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]48 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) the Synthetic Instrument Adjusted Issue Price per Affected Convertible Note on the Conversion Settlement Date, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below based on the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). 49 If the relevant Conversion Settlement Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; 47 Include in Additional Call Option Confirmation only. 48 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate. 49 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate. 50 Table to be filled out by calculating the synthetic adjusted issue price of a Convertible Note after giving effect to the integration pursuant to Section 1.1275-6 of the United States Treasury Regulations of the Transaction (and other call option transactions with respect to such Convertible Note entered into by the Counterparty) and the Convertible Note. [Notes closing date] USD[_______] June 1, 203050 USD ~~1,000;~~ 1,000.00 (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding as if the circumstances related to such Early Conversion had not occurred; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Life360, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(h)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of ~~such~~ Shares delivered (if any) to the Holder of an Affected Convertible ~~Note~~Note upon conversion thereof, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes (the “Repayment Event Notes”), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the ~~contrary in~~ Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section ‎10(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated), and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 1 contract

Sources: Call Option Transaction (Liveperson Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section ‎9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section ‎9(i)(i) as if Counterparty were not the Affected Party) (and, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Conversion Rate pursuant to any Excluded Provision); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) the excess of (xI) the ~~sum of~~ Conversion Rate (~~i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any)~~ after taking into account any applicable adjustments to the ~~Holder (as such term is defined in~~ Conversion Rate pursuant to Section 14.03 of the Indenture~~) of an Affected Convertible Note upon conversion of such Affected Convertible Note~~), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the Shares to be delivered pursuant to the Indenture in respect of the Affected Convertible Note, minus (yII) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section ‎9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000, minus (y) the number of Repurchase Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (~~A) Counterparty shall be deemed to be the sole Affected Party, (B~~3) the terminated portion of the Transaction ~~shall be~~ were the sole Affected Transaction ~~and~~ (Cand, for the avoidance of doubt, the provisions of Section ‎9(l) shall apply to any amount that is payable by Dealer ~~shall be the party entitled~~ to ~~designate an Early Termination Date~~ Counterparty pursuant to this Section ~~6(b~~‎9(i)(iii) of as if Counterparty was not the ~~Agreement~~Affected Party). “~~Amendment~~ Repurchase Event” means that ~~Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of~~ (i) any ~~term~~ Convertible Notes are repurchased (whether pursuant to Section 15.02 of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less other than ~~100% of the principal amount~~ upon acceleration of the Convertible Notes ~~to amend~~ described in Section ‎9(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its Affiliates (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction; provided that neither (i) ~~of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description~~ any conversion of Convertible Notes in pursuant to the ~~Offering Memorandum or~~ terms of the Indenture, nor (yii) any exchange of Convertible Notes pursuant to Section ~~14.07~~ 15.06 of the Indenture), shall in ~~each case, without the consent of Dealer~~either case constitute a Repurchase Event.

Appears in 1 contract

Sources: Call Option Transaction (Novavax Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a ~~Notice of~~ “Conversion Notice” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as such term is defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) hereof shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note, minus (y) USD 1,000;. (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding until their final maturity date; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). 16 Include in Additional Call Option Confirmation only. (iii) ~~Notwithstanding anything to~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of a “Fundamental Change” (as such term is defined in the Indenture) or an ~~Amendment~~ “Optional Redemption” (as such term is defined in the Indenture), shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes (the “Repayment Convertible Notes”) subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) hereof as of the date of such Repayment Notice[; provided further that any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]17. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, [minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]18, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected ~~Party~~Transaction, (4) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (5) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (6) the corresponding Convertible Notes remain outstanding as if the circumstances related to such Repayment Event had not occurred; provided that, in the event of a Repayment Event pursuant to Section 4.04 of the Indenture or Section 3.01 of the Indenture, the Repayment Unwind Payment shall not be greater than (x) the number of Repayment Options multiplied by (y) the product of (A) the Applicable Percentage and (B) the ~~Transaction shall~~ excess of (I) the amount to be paid by the ~~sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date~~ Counterparty per Convertible Note pursuant to ~~Section 6(b)~~ the relevant sections of the ~~Agreement~~Indenture over (II) USD 1,000. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a “Fundamental Change” (as such term is defined in the Indenture), upon an “Optional Redemption” (as such term is defined in the Indenture) or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives~~ (ii) any Convertible Notes are delivered to Counterparty or ~~obtains a waiver~~ any of its subsidiaries in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture or the Convertible Notes governing the~~ such party (howsoever described), (iii) any principal ~~amount, coupon, maturity, repurchase obligation~~ of ~~Counterparty,~~ any ~~term relating to conversion~~ of the Convertible Notes ~~(including changes~~ is repaid prior to the ~~conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent~~ final maturity date of the ~~holders~~ Convertible 17 Insert for Additional Call Option Confirmation. 18 Insert for Additional Call Option Confirmation. Notes (for any reason other than as a result of ~~not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ Section 10(i)(ii) hereof), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as such term is defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as such term is defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Sources: Call Option Transaction (Shockwave Medical, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repurchase Event resulting from the repurchase of any Convertible Notes upon the occurrence of a “Fundamental Change” (as defined in the Indenture) or in connection with an ~~Amendment~~ “Optional Redemption” (as defined in the Indenture), shall notify Dealer in writing of such Repurchase Event and (y) in the case of a Repurchase Event not described in clause (x) above, Counterparty may notify Dealer of such Repurchase Event, in each case, including the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (x) above shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, and in respect of such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (y) above shall not be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Convertible Notes Repurchase Notice; provided further that any “Convertible Notes Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Convertible Notes Repurchase Notice pursuant to this Confirmation and the terms of such Convertible Notes Repurchase Notice shall apply, mutatis mutandis, to this Confirmation. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable to the Transaction and~~as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, ~~with respect to~~ Dealer shall designate an Exchange Business Day following receipt of such ~~Additional Termination Event,~~ Convertible Notes Repurchase Notice (~~A) Counterparty~~ which Exchange Business Day shall be ~~deemed to be~~ on or as promptly as reasonably practicable after the ~~sole Affected Party, (B~~related settlement date for the relevant Repurchase Event) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ as an Early Termination Date ~~pursuant~~ with respect to ~~Section 6(b)~~ the portion of the ~~Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains~~ Transaction corresponding to a ~~waiver in respect~~ number of ~~any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes~~ Options (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.the

Appears in 1 contract

Sources: Additional Call Option Transaction (Sarepta Therapeutics, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date (as used in this Section 9(i)(i), as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i) as if Counterparty were not the Affected Party) (and, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Conversion Rate pursuant to any Excluded Provision); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by ~~(3)~~ (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or Shares to be delivered pursuant to Section 14.02(a) of the Indenture in respect of the Affected Convertible Notes, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) Notwithstanding anything to the contrary in this Confirmation, upon any Make-Whole Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the ~~occurrence~~ relevant converting Holder: (A) Counterparty shall, within five Scheduled Trading Days of ~~an Amendment Event~~ the Conversion Date (as used in this Section 9(i)(iii), as defined in the Indenture) for such Make-Whole Conversion, provide written notice (a “Make-Whole Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this clause (iii); (B) upon receipt of any such Make-Whole Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the Make-Whole Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Relevant Number of Options”) equal to the lesser of (x) the number of Make-Whole Convertible Notes and (y) the Number of Options as of the Conversion Date for such Make-Whole Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the Relevant Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (~~A) Counterparty shall be deemed to be the sole Affected Party, (B~~z) the terminated portion of the Transaction ~~shall be~~ were the sole Affected Transaction ~~and~~ (Cand, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer ~~shall be~~ to Counterparty pursuant to this Section 9(i)(iii) as if Counterparty were not the ~~party entitled to designate an Early Termination Date~~ Affected Party) (and, in determining the amount payable pursuant to Section ~~6(b)~~ 6 of the Agreement~~. “Amendment Event” means that Counterparty amends~~, ~~modifies, supplements, waives or obtains a waiver in respect of~~ the Calculation Agent shall not take into account any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes adjustments to the ~~conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions~~Conversion Rate pursuant to any Excluded Provision), ~~or any term~~ provided that ~~would require consent of~~ the ~~holders of~~ amount payable with respect to such termination shall not ~~less~~ be greater than ~~100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement~~ (x) the Applicable Percentage, multiplied by (y) the Relevant Number of Options, multiplied by (z) the excess of (I) the Conversion Rate (as defined in the Indenture after taking into account any adjustments thereto pursuant to Section ~~10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07~~ 14.03 of the Indenture), multiplied by the Applicable Limit Price on the settlement date for the cash to be paid and/or Shares to be delivered pursuant to Section 14.02(a) of the Indenture in ~~each case~~respect of the Make-Whole Conversion over (II) USD 1,000; (D) for the avoidance of doubt, ~~without~~ in determining the ~~consent~~ amount payable in respect of ~~Dealer~~such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Make-Whole Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Make-Whole Conversion, the Number of Options shall be reduced by the Relevant Number of Options. (iv) Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of such Repurchase Event and the delivery of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(iv). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to

Appears in 1 contract

Sources: Base Call Option Transaction (Mercadolibre Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i) as if Counterparty were not the Affected Party) (and, in determining the amount payable pursuant to Section 6 of the Agreement, the Calculation Agent shall not take into account any adjustments to the Conversion Rate pursuant to any Excluded Provision); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) the excess of (xI) the ~~sum of~~ Conversion Rate (~~i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any)~~ after taking into account any applicable adjustments to the ~~Holder (as such term is defined in~~ Conversion Rate pursuant to Section 14.03 of the Indenture~~) of an Affected Convertible Note upon conversion of such Affected Convertible Note~~), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the Shares to be delivered pursuant to the Indenture in respect of the Affected Convertible Note, minus (yII) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000 and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (~~A) Counterparty shall be deemed to be the sole Affected Party, (B~~3) the terminated portion of the Transaction ~~shall be~~ were the sole Affected Transaction ~~and~~ (Cand, for the avoidance of doubt, the provisions of Section 9(l) shall apply to any amount that is payable by Dealer ~~shall be the party entitled~~ to ~~designate an Early Termination Date~~ Counterparty pursuant to this Section ~~6(b~~9(i)(iii) of as if Counterparty was not the ~~Agreement~~Affected Party). “~~Amendment~~ Repurchase Event” means that ~~Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of~~ (i) any ~~term~~ Convertible Notes are repurchased (whether pursuant to Section 15.02 of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less other than ~~100% of the principal amount~~ upon acceleration of the Convertible Notes ~~to amend~~ described in Section 9(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its Affiliates (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction; provided that neither (i) ~~of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description~~ any conversion of Convertible Notes in pursuant to the ~~Offering Memorandum or~~ terms of the Indenture, nor (yii) any exchange of Convertible Notes pursuant to Section ~~14.07~~ 15.06 of the Indenture), shall in ~~each case, without the consent of Dealer~~either case constitute a Repurchase Event.

Appears in 1 contract

Sources: Base Call Option Transaction (Novavax Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a an Exchange Notice ~~of Conversion~~ that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “Early ~~Conversion~~ Exchange Notice”) to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “Affected ~~Convertible~~ Exchangeable Notes”), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected ~~Convertible~~ Exchangeable Note upon ~~conversion~~ exchange of such Affected ~~Convertible~~ Exchangeable Note, multiplied by the ~~Applicable Limit Price,~~ fair market value of one Share on settlement minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default ~~with respect to Counterparty~~ occurs under the terms of the ~~Convertible~~ Exchangeable Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Exchangeable Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty and/or Parent amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the ~~Convertible~~ Exchangeable Notes governing the principal amount, coupon, maturity, repurchase obligation of ~~Counterparty~~Counterparty and/or Parent, any term relating to ~~conversion~~ exchange of the ~~Convertible~~ Exchangeable Notes (including changes to the ~~conversion~~ exchange rate, ~~conversion~~ exchange rate adjustment provisions, ~~conversion~~ exchange settlement dates or ~~conversion~~ exchange conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the ~~Convertible~~ Exchangeable Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~9.01(m) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of ~~Convertible~~ Exchangeable Notes in the Offering Memorandum or (y) pursuant to Section ~~14.07~~ 10.05 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Base Call Option Transaction (Nabors Industries LTD)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early ~~Conversion~~ Exchange in respect of which a "Notice of ~~Conversion~~ Exchange" (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant ~~converting~~ exchanging "Holder:" (as such term is defined in the Indenture): (A) Counterparty ~~shall~~may, in its sole and absolute discretion, within ~~one~~ five (5) Scheduled Trading ~~Day~~ Days of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, provide written notice (an “"Early ~~Conversion~~ Exchange Notice”") to Dealer specifying the number of ~~Convertible~~ Exchangeable Notes surrendered for ~~conversion~~ exchange on such ~~Conversion~~ Exchange Date (such ~~Convertible~~ Exchangeable Notes, the “"Affected ~~Convertible~~ Exchangeable Notes”"), and the giving of such Early ~~Conversion~~ Exchange Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any ~~such~~ Early ~~Conversion~~ Exchange Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day~~ as promptly as reasonably practicable following the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange) with respect to the portion of the Transaction corresponding to a number of Options (the “"Affected Number of Options”") equal to the lesser of (x) the number of Affected ~~Convertible~~ Exchangeable Notes (as defined below) [minus the "Affected Number of Options" (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Exchangeable Notes]31 and (y) the Number of Options as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early ~~Conversion~~ Exchange and any ~~conversions~~exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to any Excluded Provision and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the ~~Conversion~~ Exchange Date for such Early ~~Conversion~~Exchange, the Number of Options shall be reduced by the Affected Number of Options. (ii) ~~Notwithstanding anything~~ [Reserved.] (iii) Within five (5) Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Exchangeable Notes subject to ~~the contrary~~ such Repayment Event (any such notice, a "Repayment Notice"); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in ~~this Confirmation if an event of default with respect to Counterparty occurs under the terms~~ particular Section 9 and Section 10(b) of the ~~Convertible Notes as~~ Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and shall remake the representation set forth in Section ~~6.01~~ 8(f) hereof as of the ~~Indenture~~date of such Repayment Notice. [Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, ~~then such event~~ mutatis mutandis, to this Confirmation]32 . The receipt by Dealer from Counterparty of ~~default~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section ‎9(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the "Repayment Options") equal to the lesser of (A) [(x)] the aggregate principal amount of such Exchangeable Notes specified in such Repayment Notice, divided by USD 1,000, [minus (y) the number of "Repayment Options" (as defined in the Base Call Option Confirmation), if any, that relate to such Exchangeable Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Exchangeable Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]33 , and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the "Repayment Unwind Payment") shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Exchange Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Exchangeable Notes remain outstanding, (5) the relevant Repayment and any exchanges, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected ~~Party~~Transaction. "Repayment Event" means that (i) any Exchangeable Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmationhowsoever defined, the occurrence of ~~an Amendment Event shall constitute an Additional Termination Event applicable to~~ the ~~Transaction and, with respect to such Additional Termination Event,~~ Optional Repurchase Date (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver as defined in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), or for any other reason) by Counterparty or any of its subsidiaries, (ii) any Exchangeable Notes are delivered to Counterparty or Issuing Subsidiary in ~~each case~~exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), ~~without~~ (iii) any principal of any of the ~~consent~~ Exchangeable Notes is repaid prior to the final maturity date of ~~Dealer~~the Exchangeable Notes, or (iv) any Exchangeable Notes are exchanged by or for the benefit of the Holders thereof for any other securities of Counterparty or any of its subsidiaries (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any exchange of Exchangeable Notes (whether into cash, Shares, "Reference Property" (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture shall not constitute a Repayment Event. _______________________________________ 31 Include in Additional Call Option Confirmation only. 32 Insert for Additional Call Option Confirmation. 33 Insert for Additional Call Option Confirmation.

Appears in 1 contract

Sources: Call Option Transaction (HIVE Digital Technologies Ltd.)

Appears in 1 contract

Sources: Base Call Option Transaction (Mirion Technologies, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty ~~shall~~may, in its sole and absolute discretion, within ~~one~~ five (5) Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any ~~such~~ Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day~~ as promptly as reasonably practicable following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes (as defined below) [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]28 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. 28 Include in Additional Call Option Confirmation only. (ii) ~~Notwithstanding anything~~ [Reserved.] (iii) Within five (5) Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to ~~the contrary~~ such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in ~~this Confirmation if an event of default with respect to Counterparty occurs under the terms~~ particular Section 9 and Section 10(b) of the ~~Convertible Notes as~~ Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and shall remake the representation set forth in Section ~~6.01~~ 8(f) hereof as of the ~~Indenture~~date of such Repayment Notice. [Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, ~~then such event~~ mutatis mutandis, to this Confirmation]29. The receipt by Dealer from Counterparty of ~~default~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section ‎9(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, [minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]30, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the AgreementTransaction. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives or obtains a waiver~~ (ii) any Convertible Notes are delivered to Counterparty in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture~~ Counterparty or ~~the Convertible Notes governing the~~ any of its subsidiaries (howsoever described), (iii) any principal ~~amount, coupon, maturity, repurchase obligation~~ of ~~Counterparty,~~ any ~~term relating to conversion~~ of the Convertible Notes ~~(including changes~~ is repaid prior to the ~~conversion rate~~final maturity date of the Convertible Notes, ~~conversion rate adjustment provisions, conversion settlement dates~~ or ~~conversion conditions)~~(iv) any Convertible Notes are exchanged by or for the benefit of the Holders thereof for any other securities of Counterparty or any of its subsidiaries (or any other property, or any ~~term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Sources: Call Option Transaction (Bitfarms LTD)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) the excess of (xI) the ~~sum of~~ Conversion Rate (~~i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any)~~ after taking into account any applicable adjustments to the ~~Holder (as such term is defined in~~ Conversion Rate pursuant to Section 14.03 of the Indenture~~) of an Affected Convertible Note upon conversion of such Affected Convertible Note~~), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the Shares to be delivered pursuant to the Indenture in respect of the Affected Convertible Note, minus (yII) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture and such event of default results in the Convertible Notes being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) ~~Notwithstanding anything~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty may notify Dealer of such Repurchase Event and the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of such Repurchase Event and the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(h)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000, minus (y) the number of Repurchase Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination (the “Repurchase Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected ~~Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement~~Transaction. “~~Amendment~~ Repurchase Event” means that ~~Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of~~ (i) any ~~term~~ Convertible Notes are repurchased (whether pursuant to Section 15.02 of the Indenture or otherwise) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty in exchange for delivery of any property or assets of Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less other than ~~100% of the principal amount~~ upon acceleration of the Convertible Notes ~~to amend~~ described in Section 9(h)(ii) hereof), or (iv) any Convertible Notes are exchanged by or for the benefit of the Holders (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its affiliates (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h)~~ any exchange offer or similar transaction; provided that any conversion of Convertible Notes pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repurchase Event.

Appears in 1 contract

Sources: Call Option Transaction (Unisys Corp)

Appears in 1 contract

Sources: Base Call Option Transaction (Imax Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which ~~a Notice of Conversion that is effective as to Counterparty has been delivered by~~ the relevant converting “Holder” (as such term is defined in the Indenture) has satisfied the requirements to conversion set forth in Section 5.01 of the Indenture: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this ~~clause (i~~Section 9(g)(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate ~~an Exchange Business~~ the second Scheduled Trading Day prior to the related settlement date for such Affected Convertible Note as an Early Termination Date ~~(which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion)~~ with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation) (and for purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Call Option Confirmation until all options thereunder are exercised or terminated)] and (y) the Number of Options as of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no ~~adjustments~~ adjustment to the ~~Conversion Rate have~~ conversion rate for the Convertible Notes has occurred pursuant to any ~~Excluded Provision~~ Make-Whole Adjustment or Discretionary Adjustment and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the “Conversion ~~Date~~ Date”(as defined in the Indenture) for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the Indenture that results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, [redemption right of Counterparty,] any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~8.01(I) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section ~~14.07~~ 5.09 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Cracker Barrel Old Country Store, Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related settlement date for such ~~Early Conversion~~Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination (the “Conversion Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and the provisions of Section 9(l) shall not apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)); provided that the ~~amount payable with respect~~ Conversion Unwind Payment (determined, for the avoidance of doubt, without regard to ~~such termination~~ Section 9(i)(i)(E) below) shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; (E) if Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (i) by Settlement in Shares or (ii) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture, then, in lieu of paying the Conversion Unwind Payment entirely in cash as contemplated by the preceding provisions of this Section 9(i)(i), Dealer shall pay and/or deliver to Counterparty, on the date such Conversion Unwind Payment would otherwise be due (or within a commercially reasonable period of time thereafter, after taking into account existing liquidity conditions and Dealer’s hedging and hedge unwind activity or settlement activity in connection with such delivery) (A) in the case where Counterparty has elected (or is deemed to have elected) to settle its conversion obligations in respect of the relevant Affected Convertible Notes (1) by Settlement in Shares or (2) in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount equal to or less than USD 1,000, a number of Shares equal to the quotient of (x) the amount of such Conversion Unwind Payment (determined, for the avoidance of doubt, after taking into account the proviso in Section 9(i)(i)(C) above) divided by (y) the value of each Share to be delivered determined by the Calculation Agent in good faith and in a commercially reasonable manner, including over a period of Exchange Business Days determined by the Calculation Agent in good faith and in a commercially reasonable manner (the “Market Price”), plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(A), or (B) in the case where Counterparty has elected to settle its conversion obligations in respect of the relevant Affected Convertible Notes in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(C) of the Indenture with a Specified Cash Amount greater than USD 1,000, (x) an amount of cash equal to the lesser of (1) the amount of such Conversion Unwind Payment and (2) the product of (I) the product of the Applicable Percentage and the excess of such Specified Cash Amount over USD 1,000 and (II) the Affected Number of Options and (y) if the amount of such Conversion Unwind Payment exceeds the amount of cash calculated pursuant to the immediately preceding clause (B)(x)(2), a number of Shares equal to the quotient of (I) the amount of such excess divided by (II) the Market Price, plus cash in lieu of any fractional Shares to be delivered with respect this subpart 9(i)(i)(E)(B); and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, and such event of default results in the Convertible Notes becoming or being declared due and payable pursuant to the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after the date on which Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Promptly (but in any event within five Scheduled Trading Days) following any Repurchase Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repurchase Event resulting from the repurchase of any Convertible Notes upon the occurrence of a “Fundamental Change” (as defined in the Indenture) or in connection with an ~~Amendment~~ “Optional Redemption” (as defined in the Indenture), shall notify Dealer in writing of such Repurchase Event and (y) in the case of a Repurchase Event not described in clause (x) above, Counterparty may notify Dealer of such Repurchase Event, in each case, including the aggregate principal amount of Convertible Notes subject to such Repurchase Event (any such notice, a “Convertible Notes Repurchase Notice”); provided that any such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (x) above shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, and in respect of such Convertible Notes Repurchase Notice for a Repurchase Event described in clause (y) above shall not be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Convertible Notes Repurchase Notice. The receipt by Dealer from Counterparty of any Convertible Notes Repurchase Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Convertible Notes Repurchase Notice, Dealer shall designate an Exchange Business Day following receipt of such Convertible Notes Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repurchase Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Convertible Notes Repurchase Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such ~~Additional Termination Event,~~ termination (Athe “Repurchase Unwind Payment”) ~~Counterparty~~ shall be ~~deemed~~ calculated pursuant to be Section 6 of the ~~sole Affected Party,~~ Agreement as if (B1) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.had been designated in

Appears in 1 contract

Sources: Base Call Option Transaction (Sarepta Therapeutics, Inc.)

Appears in 1 contract

Sources: Call Option Transaction (Pandora Media, Inc.)

Appears in 1 contract

Sources: Additional Call Option Transaction (KAMAN Corp)

Appears in 1 contract

Sources: Call Option Transaction (Imax Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting ~~Holder:~~Holder (as such term is defined in the Indenture): (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]56 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 55 Include for applicable Dealers. 56 Include in Additional Call Option Confirmation only. (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or Convertible Note on ~~behalf of Counterparty leading thereto had not occurred, (y) no adjustments to~~ the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatSettlement Date, as determined by the Calculation ~~Agent, conforms~~ Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the ~~Indenture~~ amount determined by the Calculation Agent by reference to the ~~description of Convertible Notes~~ table set forth below based on the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). 59 If the relevant Conversion Settlement Date is not listed below, the amount in the ~~Offering Memorandum or (y)~~ preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; 59 Table to be filled out by calculating the synthetic adjusted issue price of a Convertible Note after giving effect to the integration pursuant to Section ~~14.07~~ 1.1275-6 of the ~~Indenture), in each case, without~~ United States Treasury Regulations of the ~~consent of Dealer~~Transaction (and other call option transactions with respect to such Convertible Note entered into by the Counterparty) and the Convertible Note.

Appears in 1 contract

Sources: Call Option Transaction (Guidewire Software, Inc.)

Appears in 1 contract

Sources: Base Call Option Transaction (Envestnet, Inc.)

Appears in 1 contract

Sources: Call Option Transaction (Chegg, Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and the “Settlement Method” (as defined in the Indenture) applicable to the Affected Convertible Notes (and, if applicable, the “Specified Dollar Amount” (as defined in the Indenture)) elected (or deemed to be elected) with respect to the relevant Affected Convertible Notes), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related conversion settlement date but no earlier than one Scheduled Trading Day following the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Convertible Securities will be Affected Convertible Notes hereunder or “Affected Convertible Notes” under the Base Call Option Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Call Option Transaction Confirmation until all Options thereunder are exercised or terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(i)(C) as if, solely for the purpose of electing the settlement method, Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable or, in cases set forth in Sections 7.01(A)(ix) and 7.01(A)(x) of the Indenture, becoming due and payable, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes (the “Repayment Event Notes”), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain a repetition by Counterparty of the representation and warranty set forth in Section 8(f) hereunder with reference to the ~~contrary~~ date of such Repurchase Notice and an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant Repayment Event Notes) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Transaction Confirmation), if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated) and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 1 contract

Sources: Call Option Transaction (Aerie Pharmaceuticals Inc)

Appears in 1 contract

Sources: Call Option Transaction

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall ~~be no earlier than one Scheduled Trading Day following~~ correspond to a settlement date in respect of the ~~Conversion Date~~ Affected Number of Options (as defined below) that occurs on or as promptly as reasonably practicable after the related conversion settlement date for the Affected Convertible Notes for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(i)(C) as if, solely for the purpose of electing the settlement method, Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note, minus (y) USD 1,000;. (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding until their final maturity date; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of ~~an Amendment~~ a “Fundamental Change” (as defined in the Indenture), shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer in writing of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes (the “Repayment Convertible Notes”) subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event~~Event and (3) the terminated portion of the Transaction were the sole Affected Transaction; provided that in the event of a Repayment Event pursuant to Section 4.02 of the Indenture or Section 4.03 of the Indenture, the Repayment Unwind Payment shall not be greater than (x) the number of Repayment Options multiplied by (y) the product of (A) ~~Counterparty shall be deemed to be~~ the ~~sole Affected Party,~~ Applicable Percentage and (B) the ~~Transaction shall be~~ excess, if any, of (I) the ~~sole Affected Transaction and (C) Dealer shall be~~ amount paid by the ~~party entitled to designate an Early Termination Date~~ Counterparty per Convertible Note pursuant to ~~Section 6(b)~~ the relevant sections of the ~~Agreement~~Indenture over (II) USD 1,000. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives~~ (ii) any Convertible Notes are delivered to Counterparty or ~~obtains a waiver~~ any of its subsidiaries in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture or~~ such party (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or~~ for any ~~term that would require consent~~ reason other than as a result of ~~the holders of not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ Section 10(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Sources: Base Call Option Transaction (Imax Corp)

Appears in 1 contract

Sources: Base Call Option Transaction (Vishay Intertechnology Inc)

Appears in 1 contract

Sources: Base Call Option Transaction (Zillow Group, Inc.)

Appears in 1 contract

Sources: Base Call Option Transaction (Unisys Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a ~~Notice~~ notice of ~~Conversion~~ conversion under the Indenture that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ ten Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day~~ as promptly as reasonably practicable following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the ~~sum~~ sum, per each $1,000 principal amount of an Affected Convertible Note, of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture) and (ii) the number of Shares delivered (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 5.07 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatNote, as determined by the Calculation ~~Agent, conforms~~ Agent based on the ~~Indenture~~ on the Conversion Settlement Date with respect to the ~~description~~ relevant Affected Number of ~~Convertible Notes~~ Options. “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below based on the relevant Conversion Settlement Date or the relevant Repayment Date (as defined below), as applicable (the “Synthetic Instrument AIP Table”). If the relevant Conversion Settlement Date is not listed below, the amount in the ~~Offering Memorandum or (y) pursuant~~ preceding sentence shall be determined by the Calculation Agent by reference to ~~Section 14.07 of~~ the ~~Indenture)~~Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; May 21, ~~in each case~~2026 USD [•] December 1, ~~without the consent of Dealer.~~2026 USD [•] June 1, 2027 USD [•] December 1, 2027 USD [•] June 1, 2028 USD [•] December 1, 2028 USD [•] June 1, 2029 USD [•] December 1, 2029 USD [•] June 1, 2030 USD [•] December 1, 2030 USD [•] June 1, 2031 USD [•] December 1, 2031 USD [•] June 1, 2032 USD 1,000.00

Appears in 1 contract

Sources: Call Option Transaction Confirmation (Hims & Hers Health, Inc.)

Additional Termination Events. ~~(i)~~ Notwithstanding anything to the contrary in this Confirmation, (i) upon ~~any Early Conversion in~~ the occurrence of an Exchange Date with respect ~~of which~~ to an Induced Exchange or a ~~Notice of Conversion that is effective~~ Corporate Event Exchange, as ~~to Counterparty has been delivered by the relevant converting Holder~~applicable: (A) Counterparty ~~shall,~~ shall within one Scheduled Trading Day ~~of the Conversion Date for such Early Conversion,~~ provide written notice (an “~~Early Conversion~~ Excluded Exchange Notice”) to ~~Dealer~~ JPMorgan specifying the number of ~~Convertible~~ Exchangeable Notes ~~surrendered for conversion~~ exchanged on such ~~Conversion~~ Exchange Date and identifying the related exchanges as Induced Exchanges or Corporate Event Exchanges, as applicable; (B) such ~~Convertible Notes~~Induced Exchange or Corporate Event Exchange, ~~the “Affected Convertible Notes”)~~as applicable, ~~and the giving of such Early Conversion Notice~~ shall constitute an Additional Termination Event hereunder with respect to the number of Options relating to the number of Exchangeable Notes surrendered for exchange in connection with such Induced Exchange or Corporate Event Exchange, as ~~provided~~ applicable, (the “Affected Number of Options”), in ~~this clause~~ which case (i)x) the sole Affected Transaction shall consist of a transaction identical to the Transaction except that Number of Options for such Affected Transaction shall equal the Affected Number of Options and Counterparty shall be deemed the sole Affected Party and (y) the Transaction shall remain in full force and effect, except that the Number of Options subject to the Transaction immediately prior to the Exchange Date for such Induced Exchange or Corporate Event Exchange, as applicable, shall as of such Exchange Date be reduced by the Affected Number of Options; (BC) ~~upon receipt of any such Early Conversion Notice~~notwithstanding anything to the contrary in the Agreement, ~~Dealer~~ JPMorgan shall designate ~~an Exchange Business Day as~~ an Early Termination Date (in respect of such Affected Transaction, which ~~Exchange Business Day~~ shall be no earlier than one Scheduled Trading Day following the ~~Conversion~~ Exchange Date for ~~such Early Conversion~~the related Induced Exchange or Corporate Event Exchange, as applicable; (D) ~~with respect~~ notwithstanding anything to the ~~portion~~ contrary in the Agreement, the amount payable in respect of ~~the~~ such Affected Transaction ~~corresponding to a number~~ in respect of ~~Options~~ each Option that is part of such Affected Transaction (~~the~~ an “Affected ~~Number of Options~~Option”) shall equal to the lesser of (xi) the ~~number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated~~ amount payable pursuant to Section 6 of the Agreement ~~as if (x) an Early Termination Date had been designated~~ in respect of ~~a Transaction having terms identical to the Transaction and a Number of Options equal to the~~ each Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) Option and (ii) the ~~number~~ total value deliverable by Counterparty in respect of each $1,000 principal amount of such Exchangeable Notes in excess of $1,000, whether in cash and/or in Shares (the value of Shares ~~delivered~~ deliverable by Counterparty to be based on the opening price as displayed under the heading “Op” on Bloomberg page KRC.N <equity> (~~if any~~or any successor thereto) to on the ~~Holder (~~Settlement Date for such Exchangeable Notes, as ~~such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied~~ determined by the ~~Applicable Limit Price, minus (y) USD 1,000~~Calculation Agent); (DE) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (xw) the relevant ~~Early Conversion and~~ Induced Exchange or Corporate Event Exchange, as applicable, had not occurred, (x) in the case of an Induced Exchange, any ~~conversions,~~ adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty or any affiliate of Counterparty leading ~~thereto~~ thereto, had not occurred, (y) no adjustments to the ~~Conversion~~ Exchange Rate have occurred pursuant to ~~any Excluded Provision~~ Section 13.12 of the Indenture and (z) the corresponding ~~Convertible~~ Exchangeable Notes remain outstanding; , and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Sources: Call Option Transaction (Kilroy Realty Corp)

Common use of Additional Termination Events Clause in Contracts