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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43; (B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i); (C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
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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 five Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]17; 17 Include in Additional Call Option Confirmation only.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Notesrelevant Early Conversion Notice) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]18 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 NoteNote (taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by Price; the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible NotePrice” shall mean be determined based on the amount determined by the Calculation Agent utilizing the numbers in Early Termination Date with respect to such termination pursuant to the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind DateSynthetic Instrument AIP Table”). If ; provided that if the Affected Unwind exact Early Termination Date is not listed belowon the Synthetic Instrument AIP Table, the amount in the preceding sentence Synthetic Instrument Adjusted Issue Price shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Early Termination Date specified in the Synthetic Instrument AIP Table immediately preceding and immediately following following, as applicable, the Affected Unwind Date. For the avoidance of doubtEarly Termination Date with respect to such termination; June [ ], any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 2024 [ ] November 15, 2024 [ ] May 15, 2025 [ ] November 15, 2025 [ ] May 15, 2026 [ ] November 15, 2026 [ ] May 15, 2027 [ ] November 15, 2027 [ ] May 15, 2028 [ ] November 15, 2028 [ ] May 15, 2029 [ ] November 15, 2029 [ ] 18 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant date of payment, minus (y) USD 1,000;
(D) for the Synthetic Instrument Adjusted Issue Price per 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” (as such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible NoteNotes 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 the Convertible 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 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) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 10.01(a) or Section 14.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
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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 five Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]16; 16 Include in Additional Call Option Confirmation only.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion) and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Notes) relevant Early Conversion Notice 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]17 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 NoteNote (taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) USD 1,000;
(D) Counterparty shall notify Dealer (which notice may, for the Synthetic Instrument Adjusted Issue Price per avoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(j)(i)(C), prior to relevant Early Termination Date;
(E) 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 NoteNotes remain outstanding; and 17 Include in Additional Call Option Confirmation only.
(F) 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 being accelerated and declared due and payable, then such 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(l) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per , conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 14.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
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 five seven Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]15; provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; 15 Include in Additional Call Option Confirmation only.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 NoteNote (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteUSD 1,000;
(D) Counterparty shall notify Dealer (which notice may, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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
(F) 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 subject to Section 9(l) reduced by the Affected Number of this Confirmation; 44 Options. 16 Include in Additional 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, 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 Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Indenture. Any 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 and the representations by Counterparty set forth in Section 8(a)(vi) as of the 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, mutatis mutandis, to this Confirmation]17. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) 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]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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. 17 Include for Additional Call Option Confirmation. 18 Include for Additional Call Option Confirmation.
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in The occurrence of an event of default with respect of which a Notice of Conversion that is effective as to Counterparty under the terms of the Convertible Securities as set forth in Section 7.01 of the Indenture, which default has been delivered by resulted in the relevant converting Holder:Convertible Securities being accelerated and declared due and payable under the terms thereof, shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(Aii) Within five Exchange Business Days following any Repurchase Event (as defined below), Counterparty shall(x) in the case of a Repurchase Event resulting from the repurchase of any Convertible Securities by Counterparty upon the occurrence of a “Fundamental Change” (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, within five Scheduled Trading Days may notify Dealer of the Conversion Date for such Early ConversionRepurchase Event, provide written notice (an “Early Conversion Notice”) to Dealer specifying in each case, including the number of Convertible Notes surrendered for conversion on Securities subject to such Conversion Date Repurchase Event (any such notice, a “Convertible Securities Repurchase Notice”); provided further that no such Convertible Notes, Securities Repurchase Notice described in clause (y) above shall be effective unless it contains the “Affected representation by Counterparty set forth in Section 7(a)(i) as of the date of such Convertible Notes”)Securities Repurchase Notice [; provided that, further that any “Early Conversion Convertible Securities Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be an Early Conversion a Convertible Securities Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Convertible Securities Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) Confirmation]19. Notwithstanding anything to the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided contrary in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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 receipt by Dealer from Counterparty of any Convertible Notes specified in such Early Conversion Notice shall Securities 18 To be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 and (y) the Number of Options as of the Conversion Date included if applicable. 19 Include for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyadditional capped call.
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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 Supplemental Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Supplemental Indenture):
(A) Counterparty shall, within five Scheduled Trading Days of the “Conversion Date Date” (as such term is defined in the Supplemental 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)[; provided that, that any “Early Conversion Notice” as defined in, and delivered to Dealer pursuant to to, the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such “Early Conversion Notice Notice” shall apply, mutatis mutandis, to this Confirmation]43Confirmation]23;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Valid Day following the “Conversion Date” (as promptly as reasonably practicable after such term is defined in the related settlement date Supplemental Indenture) for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 Options under this Confirmation or under under, and as defined in, 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 such 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)]44 terminated)]24 and (y) the Number of Options as of the “Conversion Date Date” (as such term is defined in the Supplemental Indenture) for such Early Conversion;; 22 Include for applicable Dealers. 23 Include in Additional Call Option Confirmation only. 24 Include in Additional Call Option Confirmation only.
(DC) 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 sum, per each USD 1,000 principal amount of an Affected Convertible Note, of (i) the amount of cash paid (if any) to the Holder “Holder” (as such term is defined in the Supplemental 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 Supplemental Indenture) pursuant to Section 5.07 of the Supplemental Indenture) and (ii) the number of Shares delivered (if any) to the Holder “Holder” (as such term is defined in the Supplemental Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible NoteNote (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Supplemental Indenture) pursuant to Section 5.07 of the Supplemental Indenture), multiplied by the Applicable Limit Price on the relevant settlement date for the conversion of paymentsuch Affected Convertible Note (the “Conversion Settlement Date”), minus (y) the Synthetic Instrument Adjusted Issue Price per Affected Convertible NoteNote on the Conversion Settlement Date, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. Counterparty shall notify Dealer (which notice may, for the avoidance of doubt, be by email) of the amount of cash, if any, paid to the “Holder” and the number of Shares, if any, delivered to the “Holder”, in each case as described in clause (3)(x) of the foregoing proviso, prior to the relevant Early Termination Date. “Synthetic Instrument Adjusted Issue Price per Convertible NotePrice” shall mean the amount determined by the Calculation Agent utilizing the numbers in by reference to the table set forth below (the “Synthetic Instrument AIP Table”)25 based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Conversion Settlement Date”). If the Affected Unwind relevant Conversion Settlement Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind relevant Conversion Settlement Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.;
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Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to June 15, 2030 (any such conversion, an “Early Conversion 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 shallmay, within five ten (10) Scheduled Trading Days of the date on which the Holder of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section [14.02(c)]30 of the Indenture (the “Conversion Date Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer (which Early Conversion Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not, on the date of such Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or the Shares) 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 thatin this clause (i) (provided that Counterparty acknowledges its responsibilities under applicable securities laws and the Companies Law, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any “delivery of an Early Conversion Notice” );[ and further provided that any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Transaction Confirmation letter agreement dated September [__], 2025 between Dealer and Counterparty (the “Base Call Option Confirmation”) shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]31;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option ConfirmationTransaction ), if any, that relate to such Affected 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 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)]44 terminated)]32 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
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Sources: Call Option Transaction (Nova 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 that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]22; 21 Include for applicable Dealers. 22 Insert for Additional Call Option Confirmation.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]23 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options USD 1,000;
(the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note E) for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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
(F) 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 subject to Section 9(l) reduced by the Affected Number of this Confirmation; 44 Options. 23 Include in Additional 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 and the Convertible 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 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) 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 Sections 10.01(a) or 14.07 of the Indenture), in each case, without the consent of Dealer.
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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 five three Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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); provided that the provisions of this Section 9(i)(i)) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has made an “Exchange Election” pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(CB) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 NoteNote (including for such purposes taking into account any applicable adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) USD 1,000;
(D) Counterparty shall notify Dealer (which notice may, for the Synthetic Instrument Adjusted Issue Price per Convertible Noteavoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as determined by described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) 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” (as defined in good faith the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(F) 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, 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 Counterparty shall timely provide a Repayment Notice in connection with any repurchase or redemption of the Convertible Notes pursuant to Article 15 or Article 16 of the Indenture, as the case may be. Any Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean particular Section 9 and Section 10(b) of the amount determined Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and the representations by the Calculation Agent utilizing the numbers in the table Counterparty set forth below based on in Section 8(a)(vi) as of the date of payment such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 amount due later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) as an Early Termination Date with respect to the relevant Affected Number portion of the Transaction corresponding to a number of Options (the “Affected Unwind DateRepayment Options”). If ) equal to the Affected Unwind 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 is not listed belowand, as of such date, the amount 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 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, (3) no adjustments to the “Conversion Rate” (as defined in the preceding sentence shall be determined Indenture) 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 leading thereto had not occurred and (6) the Calculation Agent utilizing terminated portion of the numbers Transaction were the sole Affected Transaction. “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 in connection with a redemption of the Convertible Notes pursuant to the Indenture or for any other reason) 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 is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 9(i)(ii)) or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note Indenture) thereof for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance any other securities of doubtCounterparty or any of its subsidiaries (or any other property, or any payment combination thereof) pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyany exchange offer or similar transaction.
Appears in 1 contract
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:an Early Conversion Notice (as defined below):
(A) Counterparty shall, within five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9(i)(i)9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for Early Conversion in accordance with the terms of the Indenture;
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 (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 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)]44 Notes] and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 TransactionTransaction (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)(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 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 on fair market value of one Share as determined by the relevant date of paymentCalculation Agent, minus (y) USD 1,000;
(D) for the Synthetic Instrument Adjusted Issue Price per Convertible Noteavoidance of doubt, as determined by 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 good faith 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of a “Fundamental Change” or in connection with an “Optional Redemption” (both 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 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 a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” 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 and shall mean remake the amount determined by the Calculation Agent utilizing the numbers in the table representation set forth below based on in Section 8(f) hereof as of the date of payment 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, mutatis mutandis, to this Confirmation]. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 amount due related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the relevant Affected Number portion of the Transaction corresponding to a number of Options (the “Affected Unwind DateRepayment Options”) equal to the lesser of (A) [(x). If ] the Affected Unwind Date is not listed belowaggregate 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 amount 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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction; provided that, in the preceding sentence event of a Repayment Event pursuant to Section [_____]of the Indenture, the Repayment Unwind Payment shall not be determined greater than (x) the Applicable Percentage multiplied by (y) the number of Repayment Options multiplied by the Calculation Agent utilizing excess of (I) the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices amount paid by Counterparty per Convertible Note pursuant to Section [____]of the Indenture over (II) USD 1,000 per Convertible Note. “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 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 is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 10(i)), or (iv) any Convertible Notes are exchanged by or for the dates immediately preceding and immediately following benefit of the Affected Unwind Date“Holders” (as defined in the Indenture) 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 payment conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to this paragraph the terms of the Indenture shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlynot constitute a Repayment Event.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(g)(i);
(CB) 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 on or as promptly as reasonably practicable after the related settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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 options thereunder are exercised or terminated)]44 terminated)] and (y) the Number of Options as of the “Conversion Date Date” (as defined in the Indenture) for such Early Conversion;
(DC) 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 on the relevant settlement date for the conversion of paymentsuch Affected Convertible Note, minus (y) USD 1,000;
(D) for the Synthetic Instrument Adjusted Issue Price per 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 adjustment to the conversion rate for the Convertible NoteNotes has occurred pursuant to any 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”(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 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 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 8.01(I) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 5.09 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
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 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 shallmay, within five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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); provided that no such Early Conversion Notice shall be effective unless it contains the representation by Counterparty set forth in Section 9(i)(i);8(f) hereof as of the date of such Early Conversion Notice.
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]14 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 14 Include in Additional Call Option Confirmation only.
(DC) 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 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)
(D) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain 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, multiplied by (3) (x) the sum of (i) the amount of cash paid 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) 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 7.01 of the 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer of such Repayment Event, 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 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]15. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 Shares delivered Options (if anythe “Repayment Options”) equal to the Holder lesser of (as such term is defined in A) [(x)] the Indenture) of an Affected Convertible Note upon conversion aggregate principal amount of such Affected Convertible NoteNotes specified in such Repayment Notice, multiplied divided by the Applicable Limit Price on the relevant date of paymentUSD 1,000, [minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, number of “Repayment Options” (as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers defined in the table set forth below based on the date of payment of the amount due with respect Base Call Option Confirmation), if any, that relate to the relevant Affected Number of Options such Convertible Notes (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance purposes of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in 15 Insert for Additional Call Option Confirmation onlyConfirmation.
Appears in 1 contract
Sources: Call Option Transaction (iRhythm 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 that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as defined in the Indenture):
(A) Counterparty shall, within five ten Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]45;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]46 and (y) the Number of Options as of the “Conversion Date Date” (as defined in the Indenture) for such Early Conversion;
(D) 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 44 Include for applicable Dealers. 45 Insert for 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable mannerCall Option Confirmation. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 46 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
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 shallshall 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.
(ii) Promptly (and in any event within five Scheduled Trading Days Days) following any repurchase (which, for the avoidance of doubt, includes any exchange transaction) and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Conversion Date for Indenture in connection with a “Fundamental Change” (as defined in the Indenture) (such Early Conversionevent, provide written notice (an a “Early Conversion NoticeRepurchase Event”) to ), Counterparty may notify Dealer specifying in writing of such Repurchase Event and the number of Convertible Notes surrendered for conversion on subject to such Conversion Date Repurchase Event (any such Convertible Notesnotice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the “Affected Convertible Notes”)[; provided receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, any “Early Conversion Notice” delivered to Dealer pursuant to as of the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms date of such Early Conversion Notice shall applyRepurchase Notice, mutatis mutandisCounterparty is not in possession of any material non-public information regarding Counterparty or the Shares, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion NoticeRepurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day as an Early Termination Date following receipt of such Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the conversion of such Affected Convertible Notesrelevant Repurchase Event) as an Early Termination Date with respect to the portion of the this Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes specified in such Repurchase Notice [minus the number of “Affected Number of Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for Notes] divided by 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 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)]44 Applicable Percentage and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the this Transaction and a Number of Options equal to the Affected Number number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustment to the “Conversion Rate” (as defined in the Indenture) for the Convertible Notes has occurred pursuant to any Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding as if the circumstances related to the Repurchase Event had not occurred, (5) the relevant Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, and (z6) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
terms of the Convertible Notes as set forth in Section 6.01 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 shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shallshall 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.
(ii) Promptly (but in any event within five three Scheduled Trading Days Days) following any repurchase and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Conversion Date for Indenture in connection with a “Fundamental Change” (as defined in the Indenture) (a “Convertible Notes Repurchase Event”), Counterparty may notify Dealer in writing of such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying repurchase and cancellation and the number of Convertible Notes surrendered for conversion on in USD 1,000 principal amount so repurchased and cancelled (any such Conversion Date (notice, a “Notes Repurchase Notice”), which Notes Repurchase 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 such Convertible Notesrepurchase and cancellation and its delivery of such Notes Repurchase Notice. Notwithstanding anything to the contrary in this Confirmation, the “Affected Convertible Notes”)[; provided that, receipt by Dealer from Counterparty of any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notes Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion Notes Repurchase Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Notes Repurchase Notice (which in no event shall be earlier than the related repurchase settlement date for such Convertible Notes) 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 conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes [specified in such Notes Repurchase Notice, minus the number of “Affected Number of Repurchase 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 Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Repurchase Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notes Repurchase Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 terminated) and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) 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 number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Additional Termination Event pursuant to Section 6 of the Agreement, Dealer shall assume (1) the relevant Convertible Notes Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions of, by or on behalf of Counterparty leading thereto had not occurred, (2) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (3) the Convertible Notes remain outstanding.
(iii) Notwithstanding anything to the contrary in this paragraph 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 subject 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 9(l6(b) of this Confirmation; 44 Include the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements or obtains a waiver in Additional Call Option Confirmation onlyrespect of any term of the Indenture or the Convertible Notes 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 consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Additional Call Option Transaction (Patrick Industries Inc)
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
terms of the Convertible Notes as set forth in Section 6.01 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 shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shallshall 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.
(ii) Promptly (but in any event within five three Scheduled Trading Days Days) following any repurchase and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Conversion Date for Indenture in connection with a “Fundamental Change” (as defined in the Indenture) (a “Convertible Notes Repurchase Event”), Counterparty may notify Dealer in writing of such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying repurchase and cancellation and the number of Convertible Notes surrendered for conversion on in USD 1,000 principal amount so repurchased and cancelled (any such Conversion Date (notice, a “Notes Repurchase Notice”), which Notes Repurchase 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 such Convertible Notesrepurchase and cancellation and its delivery of such Notes Repurchase Notice. Notwithstanding anything to the contrary in this Confirmation, the “Affected Convertible Notes”)[; provided that, receipt by Dealer from Counterparty of any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notes Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion Notes Repurchase Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Notes Repurchase Notice (which in no event shall be earlier than the related repurchase settlement date for such Convertible Notes) 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 conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes Repurchase Notice, and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) 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 number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Additional Termination Event pursuant to Section 6 of the Agreement, Dealer shall assume (1) the relevant Convertible Notes Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions of, by or on behalf of Counterparty leading thereto had not occurred, (2) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (3) the Convertible Notes remain outstanding.
(iii) Notwithstanding anything to the contrary in this paragraph 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 subject 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 9(l6(b) of this Confirmation; 44 Include the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements or obtains a waiver in Additional Call Option Confirmation onlyrespect of any term of the Indenture or the Convertible Notes 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 consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Sources: Base Call Option Transaction (Patrick Industries 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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall Additional Termination Events will apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above . The following events shall constitute an Additional Termination Event as provided in this Section 9(i)(i);hereunder:
(Ci) upon receipt Upon the occurrence 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” Collateralization Event (as defined in Part 5(vii)(d) below) BSFP has not, within 30 days (unless, within 30 days after such downgrade, each such Swap Rating Agency has reconfirmed the Base Call Option Confirmationratings of the Swap Certificates which were in effect immediately prior to such downgrade, unless the ratings of the Swap Certificates were changed due to a circumstance other than the downgrading of BSFP's rating), if anycomplied with Part 5(vii)(d) below, that relate to such Affected 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 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 then an Additional Termination Event shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) any payment hereunder have occurred with respect to such termination BSFP and BSFP 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.
(ii) Upon the occurrence of a Ratings Event and (zas defined in Part 5(vii)(e) below) BSFP has not, within 10 business days after such rating withdrawal or downgrade (unless, within 10 business days after such withdrawal or downgrade, each such Swap Rating Agency has reconfirmed the terminated portion ratings of the Transaction Swap Certificates which were in effect immediately prior to such withdrawal or downgrade, unless the ratings of the Swap Certificates were changed due to a circumstance other than the withdrawal or downgrading of BSFP's rating), complied with Part 5(vii)(e) below, then an Additional Termination Event shall have occurred with respect to BSFP and BSFP shall be the sole Affected Transaction; provided that the amount payable Party with respect to such termination shall not be greater than Additional Termination Event.
(1iii) the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid An amendment and/or supplement to the Holder Pooling and Servicing Agreement (as or any other transaction document) is made without the prior written consent of BSFP (such term is defined in consent not to be unreasonably withheld or delayed), if such amendment and/or supplement would: (a) materially adversely affect any of BSFP's rights or obligations hereunder; or (b) modify the Indentureobligations of, or impact the ability of, Counterparty to fully perform any of Counterparty's obligations hereunder. Counterparty shall be the sole Affected Party.
(iv) Upon allocation of an Affected Convertible Note upon conversion any Applied Realized Loss Amount to any Class of such Affected Convertible Note and (ii) the number of Shares delivered (if any) Senior Certificates pursuant to the Holder (as such term is defined in the Indenture) of Pooling and Servicing Agreement, an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” Additional Termination Event shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due have occurred with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence Counterparty and Counterparty shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the sole Affected Unwind Date. For the avoidance of doubt, any payment pursuant Party with respect to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in such Additional Call Option Confirmation onlyTermination Event.
Appears in 1 contract
Sources: Mortgage Derivatives Confirmation and Agreement (Alternative Loan Trust 2006-Oc4)
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:” (as defined in the Indenture):
(A) Counterparty shall, within five seven Scheduled Trading 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 giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i)[; provided that, and any “Early Conversion Notice” as defined in, and delivered to Dealer pursuant to to, the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such “Early Conversion Notice Notice” shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]18; provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; 18 Include in Additional Call Option Confirmation only.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the “Conversion Date” (as defined in the Indenture) for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible NotesEarly Conversion Notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 Options under this Confirmation or under under, and as defined in, 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 such 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)]44 terminated)]19 and (y) the Number of Options as of the “Conversion Date Date” (as defined in the Indenture) for such Early Conversion;
(DC) 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 “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 NoteNote (including for such purposes taking into account any applicable adjustments to the “Conversion Rate” pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant settlement date for the conversion of paymentsuch Affected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Upstart Holdings, 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 under the Indenture that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading 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); provided that, notwithstanding the foregoing, in the case of any Early Conversion with a Conversion Date occurring on or after the date that Counterparty issues a “Redemption Notice” (as such term is defined in the Indenture) and prior to 5:00 p.m. (New York City time) on the second Scheduled Valid Day immediately preceding the related “Redemption Date” (as such term is defined in the Indenture) (any such period, a “Redemption Period”, and any such conversion, a “Redemption Conversion”), Counterparty shall (I) deliver a copy of such “Redemption Notice” promptly following such issuance and (II) deliver such Early Conversion Notice no later than five Scheduled Trading Days after the last day of such Redemption Period and such Early Conversion Notice shall instead specify the aggregate number of Convertible Notes surrendered for conversion during the Redemption Period[; provided further that any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]19
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such the Affected Convertible NotesNotes (or, in the case of a Redemption Conversion, the later of (x) the settlement date for the conversion of the Affected Convertible Notes and (y) the Scheduled Trading Day immediately following the date of the relevant Early Conversion Notice)) 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 42 Include for applicable Dealers. 43 19 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Call Option Transaction (Arrowhead Pharmaceuticals, 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 no later than five Scheduled Trading Days of after 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”)[; provided that, notwithstanding the foregoing, in the case of any Early Conversion with a Conversion Date occurring on or after the date that Counterparty issues a “Redemption Notice” (as such term is defined in the Indenture) and prior to 5:00 p.m. (New York City time) on the second Scheduled Valid Day immediately preceding the related “Redemption Date” (as such term is defined in the Indenture) (any such period, a “Redemption Period”, and any such conversion, a “Redemption Conversion”), Counterparty shall deliver such Early Conversion Notice no later than five Scheduled Trading Days after the last day of such Redemption Period and such Early Conversion Notice shall instead specify the aggregate number of Convertible Notes surrendered for conversion during the Redemption Period[; provided further that any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such the Affected Convertible NotesNotes (or, in the case of a Redemption Conversion, the later of (x) the settlement date for the conversion of the Affected Convertible Notes and (y) the Scheduled Trading Day immediately following the date of the relevant Early Conversion Notice)) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the relevant Conversion Date for such Early (or, in the case of a Redemption Conversion, as of the last day of the relevant Redemption Period);
(DC) 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 TransactionTransaction (and, for the avoidance of doubt, the provisions of Section 9(l) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(h)(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, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the Holder “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 on the relevant settlement date for the conversion of payment, such Affected Convertible Notes,]45 minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options USD 1,000;
(the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note D) for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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” (as such term is defined in the Indenture) 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 relevant Conversion Date (or, in the case of a Redemption Conversion, the last day of the relevant Redemption Period), the Number of Options shall be subject 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]46 of the Indenture and the Convertible 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 9(l6(b) of this Confirmation; the Agreement. 44 Include in Additional Call Option Confirmation only. 45 Include if tax-integrated. 46 Include cross-reference to the Indenture section containing events of default.
(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” (as such term is defined in the Indenture) 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(k)]47 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 [10.01(a) or Section 14.07]48 of the Indenture), in each case, without the consent of Dealer.
Appears in 1 contract
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 Supplemental Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder:
(A) Counterparty shall, within five ten Scheduled Trading Days of the “Conversion Date Date” (as defined in the Supplemental 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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); provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i)) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 9.12 of the Supplemental Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 9.12 of the Supplemental Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 9.02(i) of the Supplemental Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Supplemental Indenture;
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]15 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 is payable by Dealer to Counterparty pursuant to this Section 9(i)(i) as if Counterparty were not the Affected Party);
(D) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) 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, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 15 Include in Additional Call Option Confirmation only.
(ii) Within ten 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 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)(ii). 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 repurchase 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 [minus (y) the number of Repurchase Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]16, 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 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, (3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding, (5) the relevant Repurchase and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “Repurchase Event” means that (i) any Convertible Notes are repurchased or redeemed (whether pursuant to Section 10.01 of the Supplemental Indenture, Section 11.02 of the Supplemental 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 is repaid prior to the final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes described in Section 9(i)(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 securities of Counterparty or any of its Affiliates (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction; provided that any conversion of Convertible Notes pursuant to the terms of the Indenture shall not constitute a Repurchase Event.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]44;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 Options under this Confirmation or under the Base Call Option Confirmation will be 43 Include for applicable Dealers. 44 Insert for Additional Call Option Confirmation. 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)]44 terminated)]45 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options USD 1,000;
(the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note E) for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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
(F) 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 subject 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]46 of the Indenture and the Convertible 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 9(l6(b) of the Agreement.
(iii) Notwithstanding anything to the contrary in this Confirmation; 44 , 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 45 Include in Additional Call Option Confirmation only. 46 Include cross-reference to the Indenture section containing events of default. 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)]47 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 [10.01(a) or 14.07]48 of the Indenture), in each case, without the consent of Dealer.
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to the 5th Scheduled Valid Day immediately prior to the earliest scheduled Expiration Date, regardless of Component, listed on Annex A to this Confirmation (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 shallmay, within five one Scheduled Trading Days Day 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 5.02 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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) (provided that Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9(i)(i9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any Early Conversion Notice);
(CB) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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;
(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) 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 paragraph. 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 no earlier than one Scheduled Trading Day following the settlement date for such 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 payable 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 not be greater than 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 Applicable Percentage, multiplied by (2) the Affected Transaction and a Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Base Call Option Transaction (Chimera Investment 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:
(A) Counterparty shall, within five seven Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]15; provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 NoteNote (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on Price, minus (y) USD 1,000;
(D) Counterparty shall notify Dealer (which notice may, for the avoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) 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
(F) 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, 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 Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Indenture. Any 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 and the representations by Counterparty set forth in Section 8(a)(vi) as of the date of paymentsuch 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, mutatis mutandis, to this Confirmation]17. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) 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 Synthetic Instrument Adjusted Issue Price per number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible NoteNotes]18, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as determined of such date, the Number of Options shall be reduced by the Calculation Agent in good faith and in a commercially reasonable mannernumber of Repayment Options. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of Any payment of the amount due hereunder with respect to such termination (the relevant Affected “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 a Number of Options equal to the number of Repayment Options, (2) Counterparty were the “sole Affected Unwind Date”). If Party with respect to such Additional Termination Event, (3) no adjustments to the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment Conversion Rate have occurred pursuant to this paragraph shall be subject to Section 9(lan 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 this Confirmation; 44 Include in Additional Call Option Confirmation onlyCounterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction.
Appears in 1 contract
Sources: Call Option Transaction (Zynga 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:” (as defined in the Indenture):
(A) Counterparty shall, within five three Scheduled Trading 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 giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); [; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;]17provided[, further,] that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has made an “Exchange Election” (as defined in the Indenture) 17 Insert for Additional Call Option Confirmation. pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]18 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 “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 NoteNote (including for such purposes taking into account any applicable adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the settlement date for the conversion of the relevant date of paymentAffected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below (the “Synthetic Instrument AIP Table”). If the Affected relevant Unwind Date is not listed belowin the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by 18 Insert for Additional Call Option Confirmation. reference to the numbers in the table below Synthetic Instrument AIP Table, using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Unwind Dates immediately preceding and immediately following the Affected relevant Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.. Unwind Date Synthetic Instrument Adjusted Issue Price [____], 2025 USD [_______] January 15, 2026 USD [_______] July 15, 2026 USD [_______] January 15, 2027 USD [_______] July 15, 2027 USD [_______] January 15, 2028 USD [_______] July 15, 2028 USD 1,000.00
Appears in 1 contract
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 HolderConversion:
(A) Counterparty shallmay, within five Scheduled Trading 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, any “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” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation , and the terms giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i);
(CB) 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 no earlier than one Scheduled Valid Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]24 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner23 Include for applicable Dealers. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 24 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(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); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9(i)(i)9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(CB) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 (32) (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 on fair market value of one Share as determined by the relevant date of paymentCalculation Agent, minus (y) USD 1,000;
(D) for the Synthetic Instrument Adjusted Issue Price per Convertible Noteavoidance of doubt, as determined by 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 good faith 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), 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 a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment particular Section 9 and Section 10(b) of the amount due Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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) as an Early Termination Date with respect to the relevant Affected Number portion of the Transaction corresponding to a number of Options (the “Affected Unwind DateRepayment Options”). If ) equal to the Affected Unwind 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 is not listed belowand, as of such date, the amount 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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “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 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 is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 10(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the preceding sentence Indenture) 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; provided, however, that no Repayment Event shall be determined by occur to the Calculation Agent utilizing extent that the numbers in repurchase is effected pursuant to Section 16.01 of the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind DateIndenture. For the avoidance of doubt, any payment conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to this paragraph the terms of the Indenture shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlynot constitute a Repayment Event.
Appears in 1 contract
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 five seven Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]36; provided that any such Early Conversion Notice shall contain a written representation by Counterparty to Dealer that (i) Counterparty is not, on the date of the Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or the Shares or (ii) such decision to terminate has been made pursuant to a plan in compliance with the requirements of Rule 10b5-1 entered into by Counterparty at a time when Counterparty was not in possession of any material non-public information with respect to Counterparty or the Shares; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section [__] of the Supplemental Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section [__] of the Supplemental Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [__] of the Supplemental Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Supplemental Indenture; 36 Include in Additional Call Option Confirmation only.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]37 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 Supplemental 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 Supplemental Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible NoteNote (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section [__]38 of the Supplemental Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteUSD 1,000;
(D) Counterparty shall notify Dealer (which notice may, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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
(F) 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 subject 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 9(l) [__]39 of this Confirmation; 44 the Supplemental 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 37 Include in Additional Call Option Confirmation only. 38 Include cross-reference to the Supplemental Indenture section with make-whole adjustments to the Conversion Rate. 39 Include cross-reference to the Supplemental Indenture section related to Event of Default. 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, 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 Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Supplemental Indenture. Any Repayment Notice shall contain a written representation by Counterparty to Dealer that (i) Counterparty is not, on the date of such such Repayment Notice, in possession of any material non-public information with respect to Counterparty or the Shares or (ii) such election to deliver a Repayment Notice has been made pursuant to a plan in compliance with the requirements of Rule 10b5-1 entered into by Counterparty at a time when Counterparty was not in possession of any material non-public information with respect to Counterparty or the Shares. [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]40. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) 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]41, 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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “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 in connection with a redemption of the Convertible Notes pursuant to the Supplemental Indenture or for any other reason) 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 40 Include for Additional Call Option Confirmation. 41 Include for Additional Call Option Confirmation. described), (iii) any principal of any of the Convertible Notes is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 9(i)(ii)) or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the Supplemental Indenture) 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 Notwithstanding anything to the contrary in the Equity Definitions, if, as a result of an Extraordinary Event, the Transaction would be cancelled or terminated (whether in whole or in part) pursuant to Article 12 of the Equity Definitions, an Additional Termination Event (with the Transaction (or portion thereof) being the Affected Transaction, Counterparty being the sole Affected Party and Dealer being the party entitled to designate an Early Termination Date pursuant to Section 6(h) of the Agreement) shall be deemed to occur, and, in lieu of Sections 12.7, 12.8 and 12.9 of the Equity Definitions, Section 6 of the Agreement shall apply to such Affected Transactions.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i);
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]19 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 18 Possible language if relevant: 19 Include in Additional Call Option Confirmation only. [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.]
(DC) 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 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, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 thereof and (ii) the number of such Shares delivered (if any) to the Holder of an Affected Convertible NoteNote upon conversion thereof, multiplied by the Applicable Limit Price on the relevant settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of paymentsuch Affected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options USD 1,000;
(the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note D) for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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 subject 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 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 9(l6(b) of this Confirmation; 44 Include in Additional Call Option Confirmation onlythe Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
Appears in 1 contract
Sources: Call Option Transaction (Turning Point Brands, 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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i);
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Transaction Confirmation), if any, that relate to such Affected 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 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)]44 Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 16 Include in Additional Call Option Confirmation only.
(DC) 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 TransactionTransaction (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, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 and (ii) in each case, including any cash payable and, if applicable, Shares deliverable as the number result of Shares delivered (if any) an adjustment to the Holder “Conversion Rate” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible NoteNote in connection with a “Make-Whole Fundamental Change” (as such term is defined in the Indenture) or “Notice of Redemption” (as such term is defined in the Indenture), in each case, pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the settlement date for the conversion of the relevant date of paymentAffected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Affected Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible NotePrice” shall mean the amount determined by the Calculation Agent utilizing the numbers in by reference to the table set forth below (the “Synthetic Instrument AIP Table”) based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”)) as if such Affected Unwind Date were the Unwind Date. If the relevant Affected Unwind Date is not listed belowin the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Unwind Dates immediately preceding and immediately following the relevant Affected Unwind Date. For the avoidance of doubt; December 1, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.2027 USD [___] June 1, 2028 USD [___] December 1, 2028 USD [___] June 1, 2029 USD [___] December 1, 2029 USD [___] June 1, 2030 USD 1,000.00
Appears in 1 contract
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:: 25 Include for applicable Dealers.
(A) Counterparty shall, within five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]26;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]27 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 ;
(E) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(F) 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, multiplied by (3) (x) the sum of (i) the amount of cash paid 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) Notwithstanding anything to the Holder (as such term is defined contrary in the Indenture) this Confirmation, if an event of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due default with respect to Counterparty occurs under the relevant Affected Number terms of Options the Convertible Notes as set forth in Section 6.01 of the Indenture and the Convertible 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, (the “Affected Unwind Date”)A) 26 Insert for Additional Call Option Confirmation. If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 27 Include in Additional Call Option Confirmation only. 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) 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 10.01(a) or 14.07 of the Indenture), in each case, without the consent of Dealer.
Appears in 1 contract
Sources: Call Option Transaction (Merit Medical Systems 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:[Reserved].
(Aii) Within five Exchange Business Days immediately following any Repurchase Event (as defined below), Counterparty shallmay notify Dealer of such Repurchase Event, within five Scheduled Trading Days of the Conversion Date for such Early Conversionin each case, provide written notice (an “Early Conversion Notice”) to Dealer specifying including the number of Convertible Notes surrendered for conversion on Securities subject to such Conversion Date (such Convertible NotesRepurchase Event, or, if less, the number of Convertible Securities subject to a Repurchase Event that Counterparty elects to be subject to the provisions of Section 8(b) (any such notice, a “Affected Convertible NotesSecurities Repurchase Notice”)) [; provided that, further that any “Early Conversion Convertible Securities Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be an Early Conversion a Convertible Securities Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Convertible Securities Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]43;
Confirmation]46. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (B1) any Convertible Securities Repurchase Notice, and (2) a written representation and warranty by Counterparty that, as of the giving date of an Early Conversion such Convertible Securities Repurchase Notice, Counterparty is not in possession of any material nonpublic information regarding Counterparty or the Shares and that such Repurchase Event and the delivery of such Convertible Securities Repurchase Notice pursuant are each being made in good faith and not as part of a plan or scheme to subclause (A) above evade compliance with federal securities laws, in each case, within the applicable time period set forth in the preceding sentence, shall constitute an Additional Termination Event as provided in this Section 9(i)(i8(b)(ii);
(C) upon . Upon receipt of any such Early Conversion NoticeConvertible Securities Repurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Convertible Securities Repurchase Notice (which in no event shall be earlier than the related repurchase date for such Convertible Securities) 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 conversion of such Affected Convertible Notes) with respect to the portion of the this Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes Securities specified in such Convertible Securities Repurchase Notice [minus the “Affected Number number of Options” Repurchase Options (as defined in the Base Call Option Transaction Confirmation), if any, that relate to such Affected Convertible Notes Securities (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Transaction Confirmation will be among the Affected Number of Repurchase Options hereunder or under, and as defined in, the Base Call Option Transaction Confirmation, the Affected Convertible Notes Securities specified in such Early Conversion Convertible Securities Repurchase Notice shall be allocated first to the Base Call Option Transaction Confirmation until all Options thereunder are exercised or terminated)]44 terminated)]47 and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the this Transaction and a Number of Options equal to the Affected Number number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) the terminated portion of the Transaction were the sole Affected Transaction; provided . “Repurchase Event” means 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) any Convertible Securities are repurchased or redeemed (whether pursuant to Section [4.02]48 or [4.03]49 of the amount Indenture or otherwise) by Counterparty or any of cash paid its subsidiaries (including in connection with, or as a result of, a Fundamental Change (as defined in the Indenture), a tender offer, exchange offer or similar transaction or for any other reason), (ii) any Convertible Securities 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 Securities is repaid prior to the Holder final maturity date of the Convertible Securities, or (iv) any Convertible Securities are exchanged by or for the benefit of the “Holders” (as such term is defined in the Indenture) thereof for any other securities of an Affected Convertible Note upon conversion Counterparty or any of such Affected Convertible Note and its affiliates (iior any other property, or any combination thereof) the number of Shares delivered (if any) pursuant 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Dateany exchange offer or similar transaction. For the avoidance of doubt, any payment conversion of Convertible Securities (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to this paragraph the terms of the Indenture shall be subject not constitute a Repurchase Event. 46 Include for additional capped call. 47 Include for additional capped call. 48 Insert cross-reference to Section 9(l) section of this Confirmation; 44 Include in Additional Call Option Confirmation onlythe Indenture relating to fundamental change repurchase. 49 Insert cross-reference to section of the Indenture relating to optional redemption.
Appears in 1 contract
Sources: Call Option Transaction (Stem, 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:” (as such term is defined in the Indenture):
(A) Counterparty shallmay, but is not required to, within five Scheduled Trading 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”); provided that such Early Conversion Notice shall contain 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 [; provided provided, further, that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]23; 22 Include for applicable Dealers. 23 Insert for Additional Call Option Confirmation.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]24 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant settlement date of paymentsuch Affected Convertible Note (the “Conversion Settlement Date”), minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due Conversion Settlement Date with respect to the relevant Affected Number of Options (the “Affected Unwind Date”)Options. If the Affected Unwind Conversion Settlement Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in by reference to the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Conversion Settlement Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 . 24 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant date of payment, minus (y) USD 1,000; 8 Include for applicable Dealers.
(D) for the Synthetic Instrument Adjusted Issue Price per 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” (as such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible NoteNotes 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 the Convertible 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 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” (as such term is defined in the Indenture) 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(a) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 10.01(a) or Section 14.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
Sources: Call Option Transaction (Vishay Intertechnology 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 five Scheduled Trading Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying (x) the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”) and (y) the settlement date for the conversion of such 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, that any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]14;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than the related settlement date for the conversion of such the relevant Affected Convertible NotesNote) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]15 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 on the relevant date of paymentPrice, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent USD 1,000; 14 Include in good faith and in a commercially reasonable mannerAdditional Call Option Confirmation only. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 15 Include in Additional Call Option Confirmation only.
(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 that 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 (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(l) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture or the Convertible Notes to the “Description of notes” section of 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
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in The occurrence of an event of default with respect of which a Notice of Conversion that is effective as to Counterparty under the terms of the Convertible Securities as set forth in Section 6.01 of the Indenture, which default has been delivered by resulted in the relevant converting Holder:Convertible Securities becoming due and payable under the terms thereof, shall constitute an Additional Termination Event with respect to which the Transaction is the sole Affected Transaction and Counterparty is the sole Affected Party, and Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement.
(Aii) Within five Exchange Business Days immediately following any Repurchase Event (as defined below), Counterparty shall(x) in the case of a Repurchase Event resulting from the redemption of any Convertible Securities by Counterparty or the repurchase of any Convertible Securities by Counterparty upon the occurrence of a “Fundamental Change” (as defined in the Indenture), within five Scheduled Trading Days shall notify Dealer in writing of such Repurchase Event and (y) in the Conversion Date for case of a Repurchase Event not described in clause (x) above, may notify Dealer of such Early ConversionRepurchase Event, provide written notice (an “Early Conversion Notice”) to Dealer specifying in each case, including the number of Convertible Notes surrendered for conversion on Securities subject to such Conversion Date Repurchase Event (any such notice, a “Convertible Notes, the “Affected Convertible NotesSecurities Repurchase Notice”)[; provided that, further that any “Early Conversion Convertible Securities Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be an Early Conversion a Convertible Securities Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Convertible Securities Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) Confirmation]17. Notwithstanding anything to the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided contrary in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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 receipt by Dealer from Counterparty of (1) any Convertible Notes specified Securities Repurchase Notice, and (2) in such Early Conversion the case of any Convertible Securities Repurchase Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 and described in clause (y) the Number of Options above, a written representation and warranty by Counterparty that, as of the Conversion Date for such Early Conversion;
(D) 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 to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion date 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 NoteSecurities Repurchase Notice, multiplied by the Applicable Limit Price on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date Counterparty is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note possession of any material nonpublic 17 Include for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyadditional capped call.
Appears in 1 contract
Additional Termination Events. The following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that the Servicer's intention to exercise its option to purchase the Mortgage Loans pursuant to Section 9.01 of the Pooling and Servicing Agreement is effective as to Counterparty has been delivered given by the relevant converting Holder:
(A) Counterparty shall, within five Scheduled Trading Days Trustee to Certificateholders pursuant to Section 9.02 of the Conversion Date for such Early ConversionPooling and Servicing Agreement. Notwithstanding the foregoing, 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation this clause shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall not constitute an Additional Termination Event until such date as provided the notice of the Servicer's intention to exercise its option to purchase the Mortgage Loans can no longer be withdrawn or rescinded in this Section 9(i)(i);accordance with the Pooling and Servicing Agreement.
(Cii) upon receipt Upon the irrevocable direction to dissolve or otherwise terminate the Trust following which all assets of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall the Trust will be on or as promptly as reasonably practicable after required to be liquidated and the related settlement date for the conversion proceeds of such Affected Convertible Notes) liquidation will be required to be distributed to the Certificateholders. NEITHER BARCLAYS BANK PLC NOR ANY SUBSIDIARY OR AFFILIATE OF BARCLAYS BANK PLC IS A CREDIT SUPPORT PROVIDER ON THIS AGREEMENT. The time of dealing will be confirmed by Barclays upon written request. Barclays is regulated by the Financial Services Authority. Barclays is acting for its own account in respect of this Transaction. Please confirm that the foregoing correctly sets forth all the terms and conditions of our agreement 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 responding within three (3) (x) Business Days by promptly signing in the sum of space provided below and both (i) faxing the amount of cash paid signed copy to the Holder Incoming Transaction Documentation, Barclays Capital Global OTC Transaction Documentation & Management, Global Operations, Fax +(as such term is defined in the Indenture44) of an Affected Convertible Note upon conversion of such Affected Convertible Note 20-7773-6810/6857, Tel +(44) 20-7773-6901/6904/6965, and (ii) mai▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇py to Barcl▇▇▇ ▇▇▇▇ ▇▇▇, ▇ ▇▇e North Colonnade, Canary Wharf, London E14 4BB Attention of Incoming ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇al OTC Transaction Documentation & Management, Global Operations. Your failure to respond within such period shall not affect the number validity or enforceability of Shares delivered (if any) the Transaction as against you. This facsimile shall be the only documentation in respect of the Transaction and accordingly no hard copy versions of this Confirmation for this Transaction shall be provided unless the Counterparty requests. For and on behalf of Securitized Asset Backed Receivables BARCLAYS BANK PLC LLC Trust 2007-NC1 By: Deutsche Bank National Trust Company, not individually, but solely as trustee of the Trust -/s/ Shain Kalmanowitz -/s/ Amy Stoddard ----------------------------------- ------------------------------------ NAME Shain Kalmanowitz NAME Amy Stoddard Authorised Sig▇▇▇▇▇▇ Authorised Sig▇▇▇▇▇▇ ▇▇▇▇: Date: Barclays Bank PLC and its affiliates, including Barclays Capital Inc., may share with each other information, including non-public credit information, concerning its clients and prospective clients. If you do not want such information to be shared, you must write to the Holder Director of Compliance, Barclays Bank PLC, 200 Park Ave, New York, New York 10166. ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇ional Amount Amortization and Cap Rate Schedule Period Period Start Date Period End Date Cap Notional Amount (in USD) Cap Rate (%) 1 30-Jan-07 25-Feb-07 0 - 2 25-Feb-07 25-Mar-07 0 - 3 25-Mar-07 25-Apr-07 0 - 4 25-Apr-07 25-May-07 0 - 5 25-May-07 25-Jun-07 0 - 6 25-Jun-07 25-Jul-07 0 - 7 25-Jul-07 25-Aug-07 0 - 8 25-Aug-07 25-Sep-07 0 - 9 25-Sep-07 25-Oct-07 0 - 10 25-Oct-07 25-Nov-07 0 - 11 ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇ ▇ - ▇▇ ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇ ▇ - 13 25-Jan-08 25-Feb-08 129,658,281.21 7.090 14 25-Feb-08 25-Mar-08 136,404,443.06 7.620 15 25-Mar-08 25-Apr-08 142,405,272.04 7.100 16 25-Apr-08 25-May-08 147,710,473.43 7.350 17 25-May-08 25-Jun-08 152,366,804.22 6.981 18 25-Jun-08 25-Jul-08 156,406,520.63 7.353 19 25-Jul-08 25-Aug-08 159,840,904.50 7.116 20 25-Aug-08 25-Sep-08 162,231,510.88 7.165 21 25-Sep-08 25-Oct-08 156,834,454.19 7.487 22 25-Oct-08 25-Nov-08 170,909,115.72 8.766 23 25-Nov-08 25-Dec-08 181,425,062.58 9.155 24 25-Dec-08 25-Jan-09 184,060,000.00 8.880 25 25-Jan-09 25-Feb-09 184,060,000.00 8.886 26 25-Feb-09 25-Mar-09 184,060,000.00 9.839 27 25-Mar-09 25-Apr-09 184,060,000.00 8.932 28 25-Apr-09 25-May-09 184,060,000.00 10.000 29 25-May-09 25-Jun-09 184,060,000.00 9.779 30 25-Jun-09 25-Jul-09 184,060,000.00 10.000 31 25-Jul-09 25-Aug-09 184,060,000.00 9.765 32 25-Aug-09 25-Sep-09 184,060,000.00 9.758 Annex II Swap Notional Amount Amortization Schedule Period Period Start Date Period End Date Swap Notional Amount 1 30-Jan-07 25-Feb-07 816,819,000.00 2 25-Feb-07 25-Mar-07 797,527,835.86 3 25-Mar-07 25-Apr-07 773,632,264.50 4 25-Apr-07 25-May-07 749,092,158.76 5 25-May-07 25-Jun-07 723,986,366.80 6 25-Jun-07 25-Jul-07 698,395,925.34 7 25-Jul-07 25-Aug-07 672,403,613.49 8 25-Aug-07 25-Sep-07 645,820,026.25 9 25-Sep-07 25-Oct-07 619,014,718.79 10 25-Oct-07 25-Nov-07 592,073,567.01 11 25-Nov-07 25-Dec-07 565,083,487.86 12 25-Dec-07 25-Jan-08 538,135,972.02 13 25-Jan-08 25-Feb-08 511,516,272.82 14 25-Feb-08 25-Mar-08 486,225,842.06 15 25-Mar-08 25-Apr-08 462,197,154.57 16 25-Apr-08 25-May-08 439,365,976.49 17 25-May-08 25-Jun-08 417,671,434.67 18 25-Jun-08 25-Jul-08 397,055,798.61 19 25-Jul-08 25-Aug-08 377,438,823.42 20 25-Aug-08 25-Sep-08 358,270,397.22 21 25-Sep-08 25-Oct-08 337,910,464.55 22 25-Oct-08 25-Nov-08 299,413,375.02 23 25-Nov-08 25-Dec-08 265,778,171.94 24 25-Dec-08 25-Jan-09 236,342,390.46 25 25-Jan-09 25-Feb-09 210,562,110.37 26 25-Feb-09 25-Mar-09 188,070,907.49 27 25-Mar-09 25-Apr-09 169,431,311.69 28 25-Apr-09 25-May-09 153,742,310.15 29 25-May-09 25-Jun-09 140,362,475.79 30 25-Jun-09 25-Jul-09 128,818,142.55 31 25-Jul-09 25-Aug-09 118,756,926.25 32 25-Aug-09 25-Sep-09 109,910,378.25 33 25-Sep-09 25-Oct-09 102,070,620.09 34 25-Oct-09 25-Nov-09 95,071,185.59 35 25-Nov-09 25-Dec-09 88,776,976.63 36 25-Dec-09 25-Jan-10 83,084,336.89 37 25-Jan-10 25-Feb-10 77,908,621.43 38 25-Feb-10 25-Mar-10 73,167,413.39 39 25-Mar-10 25-Apr-10 68,681,607.50 40 25-Apr-10 25-May-10 64,437,230.29 41 25-May-10 25-Jun-10 60,421,133.69 42 25-Jun-10 25-Jul-10 56,620,672.38 43 25-Jul-10 25-Aug-10 53,024,049.89 44 25-Aug-10 25-Sep-10 49,838,898.03 45 25-Sep-10 25-Oct-10 46,823,600.44 46 25-Oct-10 25-Nov-10 43,968,922.15 47 25-Nov-10 25-Dec-10 41,266,165.05 48 25-Dec-10 25-Jan-11 38,707,065.97 49 25-Jan-11 25-Feb-11 36,283,841.05 50 25-Feb-11 25-Mar-11 33,989,136.01 51 25-Mar-11 25-Apr-11 31,816,002.12 52 25-Apr-11 25-May-11 29,757,879.93 53 25-May-11 25-Jun-11 27,808,588.74 54 25-Jun-11 25-Jul-11 25,962,228.96 55 25-Jun-11 25-Aug-11 24,213,259.55 56 25-Aug-11 25-Sep-11 22,720,515.56 57 25-Sep-11 25-Oct-11 21,305,735.48 58 25-Oct-11 25-Nov-11 19,964,748.14 EXHIBIT V ADDITIONAL DISCLOSURE NOTIFICATION **SEND VIA EMAIL TO DBSec.Notifications@db.com AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDI▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇RESS NOTED AT THE BOTTOM OF THIS FORM Deutsche Bank National Trust Company, as such term is defined Trustee 1761 East St. Andrew Place Santa Ana, California 92705-4934 Email: DBSe▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇ ▇▇▇▇: Trust & Securities Services - BC07C1 ▇▇: **▇▇▇▇▇▇▇▇▇▇ ▇orm [10-D][10-K][8-K] Disclosure** Required Ladies and Gentlemen: In accordance with Section [_] of the Pooling and Servicing Agreement, dated as of [____] [__], 2007, among [____], as [____], [____], as [____], [____], as [____] and [____], as [____]. The undersigned, as [____], hereby notifies you that certain events have come to our attention that [will] [may] need to be disclosed on Form [10-D][10-K][8-K]. Description of Additional Form [10-D][10-K][8-K] Disclosure: List of any Attachments hereto to be included in the IndentureAdditional Form [10-D][10-K][8-K] Disclosure: Any inquiries related to this notification should be directed to [____], phone number: [____]; email address: [____]. [NAME OF PARTY], as [role] By:____________________________________ Name: Title: with a copy to: Securitized Asset Backed Receivables LLC 200 Park Avenue New York, New York 10166 Attention: [_________] ▇▇▇▇▇▇▇ W FORM OF TRUSTEE'S LIMITED POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Deutsche Bank National Trust Company, a national banking association organized and existing under the laws of the United States, having its principal place of business at 1761 East St. Andrew Place, Santa Ana, California, 92705, as Trustee (t▇▇ "▇▇▇▇▇▇▇") ▇▇▇▇▇▇▇▇ ▇▇ that ____________ ____ Agreement dated as of _______ (the "Agreement") by and between _________ and_________ (the "Servicer"), [INSERT ADDITIONAL PARTIES AND/OR AGREEMENTS AS NECESSARY] hereby constitutes and appoints the Servicer, by and through the Servicer's officers, the Trustee's true and lawful Attorney-in-Fact, in the Trustee's name, place and stead and for the Trustee's benefit, in connection with all mortgage loans serviced by the Servicer pursuant to the Agreement solely for the purpose of performing such acts and executing such documents in the name of the Trustee necessary and appropriate to effectuate the following enumerated transactions in respect of any of the mortgages or deeds of trust (the "Mortgages" and the "Deeds of Trust" respectively) and promissory notes secured thereby (the "Mortgage Notes") for which the undersigned is acting as Trustee for various certificateholders (whether the undersigned is named therein as mortgagee or beneficiary or has become mortgagee by virtue of endorsement of the Mortgage Note secured by any such Mortgage or Deed of Trust) and for which _________ is acting as the Servicer. This Appointment shall apply only to the following enumerated transactions and nothing herein or in the Agreement shall be construed to the contrary:
1. The modification or re-recording of a Mortgage or Deed of Trust, where said modification or re-recording is solely for the purpose of correcting the Mortgage or Deed of Trust to conform same to the original intent of the parties thereto or to correct title errors discovered after such title insurance was issued; provided that (i) said modification or re-recording, in either instance, does not adversely affect the lien of the Mortgage or Deed of Trust as insured and (ii) otherwise conforms to the provisions of the Agreement.
2. The subordination of the lien of a Mortgage or Deed of Trust to an Affected Convertible Note easement in favor of a public utility company of a government agency or unit with powers of eminent domain; this section shall include, without limitation, the execution of partial satisfactions/releases, partial reconveyances or the execution or requests to trustees to accomplish same.
3. The conveyance of the properties to the mortgage insurer, or the closing of the title to the property to be acquired as real estate owned, or conveyance of title to real estate owned.
4. The completion of loan assumption agreements.
5. The full satisfaction/release of a Mortgage or Deed of Trust or full conveyance upon conversion payment and discharge of all sums secured thereby, including, without limitation, cancellation of the related Mortgage Note.
6. The assignment of any Mortgage or Deed of Trust and the related Mortgage Note, in connection with the repurchase of the mortgage loan secured and evidenced thereby.
7. The full assignment of a Mortgage or Deed of Trust upon payment and discharge of all sums secured thereby in conjunction with the refinancing thereof, including, without limitation, the assignment of the related Mortgage Note.
8. With respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a deed in lieu of foreclosure, or the completion of judicial or non-judicial foreclosure or termination, cancellation or rescission of any such foreclosure, including, without limitation, any and all of the following acts:
a. the substitution of trustee(s) serving under a Deed of Trust, in accordance with state law and the Deed of Trust;
b. the preparation and issuance of statements of breach or non-performance;
c. the preparation and filing of notices of default and/or notices of sale;
d. the cancellation/rescission of notices of default and/or notices of sale;
e. the taking of deed in lieu of foreclosure; and
f. the preparation and execution of such Affected Convertible Noteother documents and performance of such other actions as may be necessary under the terms of the Mortgage, multiplied Deed of Trust or state law to expeditiously complete said transactions in paragraphs 8.a. through 8.e. above.
9. With respect to the sale of property acquired through a foreclosure or deed-in lieu of foreclosure, including, without limitation, the execution of the following documentation:
a. listing agreements;
b. purchase and sale agreements;
c. grant/warranty/quit claim deeds or any other deed causing the transfer of title of the property to a party contracted to purchase same;
d. escrow instructions; and
e. any and all documents necessary to effect the transfer of property.
10. The modification or amendment of escrow agreements established for repairs to the mortgaged property or reserves for replacement of personal property. The undersigned gives said Attorney-in-Fact full power and authority to execute such instruments and to do and perform all and every act and thing necessary and proper to carry into effect the power or powers granted by or under this Limited Power of Attorney as fully as the undersigned might or could do, and hereby does ratify and confirm to all that said Attorney-in-Fact shall be effective as of _________. This appointment is to be construed and interpreted as a limited power of attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to, and it is not to be construed as a general power of attorney. Nothing contained herein shall (i) limit in any manner any indemnification provided by the Applicable Limit Price on Servicer to the relevant date of paymentTrustee under the Agreement, minus or (yii) be construed to grant the Synthetic Instrument Adjusted Issue Price per Convertible NoteServicer the power to initiate or defend any suit, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers litigation or proceeding in the table set forth below based on name of Deutsche Bank National Trust Company except as specifically provided for herein. If the date Servicer receives any notice of payment suit, litigation or proceeding in the name of Deutsche Bank National Trust Company, then the amount due Servicer shall promptly forward a copy of same to the Trustee. This limited power of attorney is not intended to extend the powers granted to the Servicer under the Agreement or to allow the Servicer to take any action with respect to Mortgages, Deeds of Trust or Mortgage Notes not authorized by the relevant Affected Number Agreement. The Servicer hereby agrees to indemnify and hold the Trustee and its directors, officers, employees and agents harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of Options (any kind or nature whatsoever incurred by reason or result of or in connection with the “Affected Unwind Date”)exercise by the Servicer of the powers granted to it hereunder. If The foregoing indemnity shall survive the Affected Unwind Date termination of this Limited Power of Attorney and the Agreement or the earlier resignation or removal of the Trustee under the Agreement. This Limited Power of Attorney is not listed below, the amount in the preceding sentence entered into and shall be determined governed by the Calculation Agent utilizing laws of the numbers State of New York, without regard to conflicts of law principles of such state. Third parties without actual notice may rely upon the exercise of the power granted under this Limited Power of Attorney; and may be satisfied that this Limited Power of Attorney shall continue in full force and effect and has not been revoked unless an instrument of revocation has been made in writing by the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyundersigned.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC Trust 2007-Nc1)
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon The occurrence of 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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above following shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options which (the “Affected Number of Options”1) equal to the lesser of (x) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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 Counterparty shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 (z2) the terminated portion of the Transaction were shall be the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) any of the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of following Additional Termination Events described in clauses (i) or (ii) below, Dealer may choose to treat one or more parts of the Transaction as the sole Affected Transaction and either to terminate each such part on different days or to calculate the amount of cash paid owing in connection with such Additional Termination Event by reference to the Holder (as such term is defined in the Indenture) a Share price determined over a period not to exceed 50 Exchange Business Days, and, upon termination of an Affected Convertible Note upon conversion Transaction, a Transaction with a Number of such Affected Convertible Note and (ii) Warrants equal to the unaffected 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence Warrants shall be determined by treated for all purposes as the Calculation Agent utilizing the numbers Transaction, which shall remain in the table below using a linear interpolation between the lower full force and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note effect and, for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to all relevant provisions and adjustments as if an Additional Termination Event had not occurred; and, provided further, that, without limiting the foregoing, notwithstanding the provisions of Section 9(l6(b)(iv) of the Agreement, Counterparty shall also have the right to designate an Early Termination Date with respect to the Additional Termination Event described in clause (ii) below if Counterparty (x) provides a certificate that includes a representation that Counterparty is not, as of the date of such certificate, aware of any material non-public information concerning itself or the Shares (where “material” shall have the meaning set forth in paragraph 5(o) below) and (y) satisfies such other conditions, including making additional representations and warranties, relating to securities law and other issues as requested by the Calculation Agent:
(i) if at any time Dealer is unable, or reasonably determines that it is inadvisable, to hedge its obligations pursuant to this ConfirmationTransaction in the public market without registration under the Securities Act or as a result of any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer);
(ii) if at any time an Early Termination Date is designated with respect to the transaction relating to the Convertible Notes described in the confirmation between the parties hereto regarding the Bond Hedge Transaction dated as of September 6, 2017 (the “Bond Hedge Transaction”) or the Bond Hedge Transaction is otherwise cancelled or terminated prior to its expiration for any reason; 44 Include or
(iii) if at any time Dealer receives a Par Value Notice, unless the Calculation Agent shall have determined that the applicable Par Value Event would not result in Additional Call Option Confirmation onlythe amount of the Premium being less than the aggregate par value of the Maximum Amount of Shares following such event (a “Par Value ATE”); provided that, notwithstanding anything to the contrary in the Agreement, Dealer shall designate an Early Termination Date in respect of a Par Value ATE no later than the anticipated record or other effective date of such event specified in the Par Value Notice.
Appears in 1 contract
Sources: Warrant Transaction (Qiagen Nv)
Additional Termination Events. Additional Termination Events will apply:
(i) Notwithstanding anything If, upon the occurrence of a Swap Disclosure Event (as defined in Part 5(1)(ii) below) Bear ▇▇▇▇▇▇▇ has not, within ten (10) calendar days after such Swap Disclosure Event complied with any of the provisions set forth in Part 5 (1) below, then an Additional Termination Event shall Reference Number: FXNSC9495 LaSalle Bank National Association, not in its individual capacity, but solely as Supplemental Interest Trust Trustee on behalf of the Supplemental Interest Trust relating to the contrary ▇▇▇▇▇▇▇ ▇▇▇▇▇ First ▇▇▇▇▇▇▇▇ Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-2 April 26, 2007 Page 7 of 37 have occurred with respect to Bear ▇▇▇▇▇▇▇, Bear ▇▇▇▇▇▇▇ shall be the sole Affected Party and all Transactions hereunder shall be Affected Transaction.
(ii) If, without the prior written consent of Bear ▇▇▇▇▇▇▇ where such consent is required under the Pooling and Servicing Agreement, an amendment or supplemental agreement is made to the Pooling and Servicing Agreement which amendment or supplemental agreement could reasonably be expected to have a material adverse effect on the interests of Bear ▇▇▇▇▇▇▇ under this Agreement, an Additional Termination Event shall have occurred with respect to Counterparty, Counterparty shall be the sole Affected Party and all Transactions hereunder shall be Affected Transaction.
(iii) If the Supplemental Interest Trust Trustee is unable to pay, or fails or admits in this Confirmationwriting its inability to pay, upon on any Early Conversion Distribution Date, any principal or interest with respect to the Class A Certificates or of the ultimate payment of principal with respect to the Class A Certificates, in either case to the extent required pursuant to the terms of the Pooling and Servicing Agreement to be paid to the Class A Certificates on such Distribution Date, then an Additional Termination Event shall have occurred with respect of which a Notice of Conversion that is effective as to Counterparty, Counterparty has been delivered by shall be the relevant converting Holder:sole Affected Party and all Transactions hereunder shall be Affected Transaction.
(A) Counterparty shall, within five Scheduled Trading Days of the Conversion Date for such Early Conversion, provide written notice If a S&P First Level Downgrade has occurred and is continuing and Bear ▇▇▇▇▇▇▇ fails to take any action described under Part (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”5)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch First Franklin Mortgage Loan Trust, Series 2007-2)
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 on the relevant date of payment, minus (y) USD 1,000;
(E) for the Synthetic Instrument Adjusted Issue Price per 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 NoteNotes remain outstanding; and
(F) 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 the Convertible Notes are declared due and payable as a result thereof, then such declaration 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(i) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 14.11 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
Additional Termination Events. (i) Promptly (but in any event within ten Scheduled Trading Days) following any repurchase, redemption, exchange or conversion of any of Counterparty’s [ ]% Convertible Senior Notes due 2026 (the “Convertible Notes”) issued pursuant to Counterparty’s indenture (the “Indenture”) [to be]7 dated May [__], 2021, between Counterparty and U.S. Bank National Association, as trustee, Counterparty may, but is not required to, notify Dealer in writing of such repurchase, redemption, exchange or conversion and the number of Convertible Notes so repurchased, redeemed, exchanged or converted and the number of Shares underlying such Convertible Notes (any such notice, a “Repurchase Notice” and any such event, a “Repurchase Event”). Notwithstanding anything to the contrary in this Confirmation, upon the receipt by Dealer from Counterparty of (x) 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 shallRepurchase Notice, within five Scheduled Trading Days the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, as 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms date of such Early Conversion Notice shall applyRepurchase Notice, mutatis mutandisCounterparty is not in possession of any material non-public information regarding Counterparty or the Shares, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion NoticeRepurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice 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 conversion of such Affected Convertible Notes) with respect to the portion of the this Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected shares of Common stock underlying the Convertible Notes applicable to the Transaction that is specified in such Repurchase Notice [minus the “Affected Number of Repurchase Options” (as defined in the Base Capped Call Option Transaction Confirmation, dated as of May [_], 2021, between Counterparty and Dealer relating to the Convertible Notes (the “Base Capped Call Transaction Confirmation”)), if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Capped Call Option Transaction Confirmation will shall be among the Affected Number of Repurchase Options hereunder or under, and as defined in, the Base Capped Call Option Transaction Confirmation, the Affected such Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Capped Call Option Transaction Confirmation until all Options thereunder are exercised or terminated)]44 terminated)]8 and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any Termination Date and, as of such date, the aggregate Number of Options shall be reduced by the number of Repurchase Options on a pro rata basis across all Components, as determined by the Calculation Agent in a commercially reasonable manner. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the this Transaction and a Number of Options equal to the Affected Number number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) the terminated portion of the Transaction were the sole Affected Transaction; provided that . 6 If required. 7 Include in the amount payable Base Capped Call Confirmation. Include in the Additional Capped Call Confirmation if executed by the closing of the base deal. 8 Include for additional capped call transaction.
(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 [___]9 of the 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 termination Additional Termination Event, (A) Counterparty shall not be greater than deemed to be the sole Affected Party, (1B) the Applicable Percentage, multiplied by Transaction shall be the sole Affected Transaction and (2C) Dealer shall be the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid party entitled to the Holder (as such term is defined in the Indenturedesignate an Early Termination Date pursuant to Section 6(b) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyAgreement.
Appears in 1 contract
Sources: Capped Call Transaction (Dynavax Technologies 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 shallmay, within five ten Scheduled Trading 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”)[; 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; provided, further, that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 is payable by Dealer to Counterparty pursuant to this Section 9(h)(i) as if Counterparty were not the Affected Party);
(E) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and
(F) 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 7.01 of the Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, multiplied by then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (3A) 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 (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, 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) the sum of (i) the amount of cash paid pursuant to the Holder (as such term is defined in the IndentureSection 10.01(j) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteIndenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 4.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation; 9 Include for applicable Dealers.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant settlement date for the conversion of paymentsuch Affected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below (the “Synthetic Instrument AIP Table”) based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the relevant Affected Unwind Date is not listed belowin the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Affected Unwind Dates immediately preceding and immediately following the relevant Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.Affected Unwind Date Synthetic Instrument Adjusted Issue Price per Convertible Note May 9, 2024 USD [_______] November 15, 2024 USD [_______] May 15, 2025 USD [_______] November 15, 2025 USD [_______] May 15, 2026 USD [_______] November 15, 2026 USD [_______] May 15, 2027 USD [_______] November 15, 2027 USD [_______] May 15, 2028 USD 1,000.00
Appears in 1 contract
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:” (as defined in the Indenture):
(A) Counterparty shall, within five three Scheduled Trading 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 giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); [; provided that, any such Early Conversion Notice shall contain an acknowledgment by Counterparty of 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 Early Conversion Notice]40 [;provided, further, that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation;]41provided, further, that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has made an “Exchange Election” (as defined in the Indenture) pursuant to 40 Subject to tax review 41 Insert for Additional Call Option Confirmation. Section [14.12]42 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section [14.12]43 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section [14.02(c)]44 of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible NotesEarly Conversion Notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]45 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 “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 NoteNote (including for such purposes taking into account any applicable adjustments to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [14.03]46 of the Indenture), multiplied by the Applicable Limit Price on the settlement date for the conversion of the relevant date of paymentAffected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below (the “Synthetic Instrument AIP Table”). If the Affected relevant Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers 42 Include cross reference to Indenture section containing provision of exchange in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance lieu of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyconversion.
Appears in 1 contract
Sources: Call Option Transaction (Impinj 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:” (as such term is defined in the Indenture):
(A) Counterparty shallmay, but is not required to, within five Scheduled Trading 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”); provided that such Early Conversion Notice shall contain 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 [; provided provided, further, that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]14;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]15 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 13 Include for applicable Dealers. 14 Insert for Additional Call Option Confirmation. 15 Include in Additional Call Option Confirmation only.
(DC) 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 to the Holder “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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in by reference to the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation ) and the terms anticipated settlement date, and the giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i);
(CB) 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 for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected 1 Possible language if relevant: [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 TransactionTransaction (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, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 thereof and (ii) the number of such Shares delivered (if any) to the Holder of an Affected Convertible NoteNote upon conversion thereof, multiplied by the Applicable Limit Price on the relevant settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of paymentsuch Affected Convertible Note, minus (y) USD 1,000;
(D) for the Synthetic Instrument Adjusted Issue Price per Convertible Noteavoidance of doubt, as determined by 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 good faith 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) 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 a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment particular Section 9 and Section 10(b) of the amount due Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 relevant Affected Number portion of the Transaction corresponding to a number of Options (the “Affected Unwind DateRepayment Options”). If ) equal to the Affected Unwind 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 is not listed belowand, as of such date, the amount in the preceding sentence Number of Options shall be determined reduced by the Calculation Agent utilizing number of Repayment Options. Any payment hereunder with respect to such termination (the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected “Repayment Unwind Date. For the avoidance of doubt, any payment Payment”) shall be calculated pursuant to this paragraph shall be subject Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to Section 9(lthe Transaction 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, (3) 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 this Confirmation; 44 Include in Additional Call Option Confirmation onlyCounterparty leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction.
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date (any such conversion, an “Early Conversion 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 shallmay, but shall not be obligated to, within five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms giving of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i) (provided that any such Early Conversion Notice shall contain the representation and warranty that neither Counterparty nor, without any duty to conduct additional due diligence, to its knowledge, (x) any of its affiliates, (y) any individual or entity who is an officer, member, director, employee or shareholder of it of any of its affiliates who has knowledge of the Transaction or exercise of the Option, or (z) any other person acting on behalf of any such person, is, on the date thereof: (i) in possession of any material non-public information or inside information (however such terms are defined under all applicable laws and regulations in each relevant jurisdiction) with respect to Counterparty or the Shares; (ii) in possession of any inside information, however defined under all applicable laws and regulations in each relevant jurisdiction regarding the Shares or the Counterparty or any other securities issued by the Counterparty; (iii) in possession of any information, the possession of which would cause Counterparty's giving of such Early Termination Notice or actions in respect of the Affected Convertible Notes to contravene applicable laws or regulations relating to insider dealing and/or market abuse; and/or (iv) or, at any time up until immediately after such Additional Termination Event, will be, engaged in market abuse, for the purposes of UK MAR or any comparable offence under any comparable applicable legislation in any other relevant jurisdiction);
(CB) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Transaction Confirmation letter agreement dated [ ], 2026 between Dealer and Counterparty (the “Base Call Option Confirmation”)), if any, that relate to such Affected 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 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)]44 Notes]29 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 ;
(D) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) no adjustments to the “Conversion Rate” (as defined in the Indenture) 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 Early Termination Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 ____________________ 29 Include in Additional Call Option Confirmation only.
(ii) [Reserved].
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, but shall not be obligated to, notify Dealer of such Repayment Event, including the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”)[; provided 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]30. Such Repayment Notice shall contain the representation and warranty that neither Counterparty nor, without any duty to conduct additional due diligence, to the best of its knowledge, (x) any of its affiliates, (y) any individual or entity who is an officer, member, director, employee or shareholder of it of any of its affiliates who has knowledge of the Transaction or exercise of the Option, or (z) any other person acting on behalf of any such person, is, on the date thereof: (i) in possession of any material non-public information or inside information (however such terms are defined under all applicable laws and regulations in each relevant jurisdiction) with respect to Counterparty or the Shares; (ii) in possession of any inside information, however defined under all applicable laws and regulations in each relevant jurisdiction regarding the Shares or the Counterparty or any other securities issued by the Counterparty; (iii) in possession of any information, the possession of which would cause the Repayment Event to contravene applicable laws or regulations relating to insider dealing and/or market abuse; and/or (iv) or, at any time up until immediately after such Additional Termination Event, will be, engaged in market abuse, for the purposes of UK MAR or any comparable offence under any comparable applicable legislation in any other relevant jurisdiction. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 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)]31, 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 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 and (3) the terminated portion of the Transaction were the sole Affected Transaction. ____________________ 30 Insert for Additional Call Option Confirmation. 31 Insert for Additional Call Option Confirmation.
Appears in 1 contract
Sources: Call Option Transaction (Caledonia Mining Corp PLC)
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
terms of the Convertible Notes as set forth in Section 6.01 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 shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shallshall 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.
(ii) Promptly (but in any event within five Scheduled Trading Days Days) following any redemption or repurchase and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Conversion Date for Indenture in connection with a “Fundamental Change” (as defined in the Indenture) (a “Convertible Notes Repurchase Event”), Counterparty may notify Dealer in writing of such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying redemption or repurchase and cancellation and the number of Convertible Notes surrendered for conversion on in USD 1,000 principal amount so redeemed or repurchased and cancelled (any such Conversion Date (notice, a “Notes Repurchase Notice”), which Notes Repurchase 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 such Convertible Notesredemption or repurchase and cancellation and its delivery of such Notes Repurchase Notice. Notwithstanding anything to the contrary in this Confirmation, the “Affected Convertible Notes”)[; provided that, receipt by Dealer from Counterparty of any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notes Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion Notes Repurchase Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Notes Repurchase Notice (which in no event shall be earlier than the related redemption or repurchase settlement date for such Convertible Notes) 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 conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes specified in such Notes Repurchase Notice, [minus the number of “Affected Number of Repurchase 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 Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Repurchase Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notes Repurchase Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 terminated)]16 and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) 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 number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) the terminated portion of the Transaction were the sole Affected Transaction; provided that . For the avoidance of doubt, in determining the amount payable in respect of such Additional Termination Event pursuant to Section 6 of the Agreement, Dealer shall assume (1) the relevant Convertible Notes Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions of, by or on behalf of Counterparty leading thereto had not occurred, (2) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (3) the Convertible Notes remain outstanding as if the circumstances related to such Convertible Notes Repurchase Event had not occurred.
(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 termination Additional Termination Event, (A) Counterparty shall not be greater than deemed to be the sole Affected Party, (1B) the Applicable PercentageTransaction 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, multiplied by modifies, supplements or obtains a waiver in respect of any term of the Indenture or the Convertible Notes that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (2) the Affected Number of Optionsother than, multiplied by (3) in each case, any amendment or supplement (x) the sum of (i) the amount of cash paid pursuant to the Holder (as such term is defined in the IndentureSection 10.01(k) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteIndenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per , conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 14.07 of the amount due with respect Indenture), in each case, without the consent of Dealer (such consent not to the relevant Affected Number of Options (the “Affected Unwind Date”be unreasonably withheld or delayed). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Call Option Transaction (Advanced Energy Industries Inc)
Additional Termination Events. The following shall be Additional Termination Events with respect to which Borrower is the sole Affected Party and (subject to the proviso in clause (ii), (iv) and (v) below and Section 3(e)(vi) below) all Transactions under this Master Confirmation shall be Affected Transactions:
(i) Notwithstanding anything (x) Lender shall have received any notice from Borrower with respect to a proposed amendment, modification, restatement, supplement, waiver or change 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 five Scheduled Trading Days Amended and Restated Limited Liability Company Agreement of the Conversion Date for such Early ConversionUnits Issuer, provide written notice dated as of May 18, 2016 (an “Early Conversion Notice”) as amended, modified or supplemented from time to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notestime, the “Affected Convertible Notes”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of OptionsLLC Agreement”) equal to the lesser of (x) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” or any Existing Investment Documents (as defined in the Base Call Option ConfirmationIssuer Agreement), if anythe subject of which Lender determines, that relate in its reasonable discretion, would have a materially adverse effect on Lender’s hedging positions with respect to such Affected Convertible Notes (and for the purposes Transaction or Lender’s ability to hedge its credit exposure or any economic, trading, or any other type of determining whether any Options under this Confirmation or risk under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or underTransaction, 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)]44 and (y) Lender shall have promptly notified Borrower of such determination and (z) such proposed amendment, modification, restatement, supplement, waiver or change shall not have been revoked or otherwise modified to Lender’s reasonable satisfaction prior to the Number of Options as effective date of the Conversion Date for such Early Conversionamendment, modification restatement, supplement, waiver or change or any later date on which Lender wishes to exercise its right to terminate the Transactions pursuant to this clause (i);
(Dii) any “Additional Termination Event” with respect to which Borrower is the sole Affected Party, any “Event of Default” with respect to which Borrower is the sole Defaulting Party or any cancellation or termination of the Share Collar Transactions (as defined under the Collar Confirmations) under Article 12 of the Equity Definitions incorporated therein, in each case, that results in an Early Termination Date or other date of termination or cancellation occurring or being designated thereunder under one or more Collar Confirmations; provided that if an Early Termination Date or other date of termination or cancellation occurs or is designated with respect to a portion of such Share Collar Transactions, (a) any payment hereunder with respect to such termination shall be calculated made pursuant to Section 6 of the Agreement shall be made on a proportional basis 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 solely such Additional Termination Event and (z) the terminated corresponding portion of the Transaction were Transactions and the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than Components (1or portions thereof) the Applicable Percentagethereof, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (iib) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, the Transactions shall remain in full force and effect except that such Transactions shall be reduced by the corresponding Components (or portions thereof) included in such terminated portion;
(iii) any payment breach by Borrower, Issuer or Units Issuer of any representation, warranty, covenant, obligation or other agreement under the Issuer Agreement that would reasonably be likely to have a material adverse effect on Lender’s rights and remedies hereunder or under the Pledge Agreement or on Borrower’s ability to perform Borrower’s obligations under this Master Confirmation, the Agreement, the Collar Confirmations, the Pledge Agreement, any Supplemental Confirmation or any Transaction and if such breach has not been cured within 3 Local Business Days after notice of such breach to Borrower unless Borrower has delivered to Lender by 5:00 p.m. (New York City time) on the third Local Business Day after notice of such breach to Borrower evidence that Borrower is actively taking reasonably diligent actions to cure such breach, in which case 10 Local Business Days after notice of such breach to Borrower;
(iv) the submission by Borrower of any “Exchange Notice” (as defined in the Exchange Agreement dated as of May 18, 2016, by and among the Issuer, the Units Issuer, CCH II, LLC and Advance/▇▇▇▇▇▇▇▇ Partnership (as amended, modified or supplemented from time to time, the “Exchange Agreement”)) in respect of any Collateral Units (as defined in the Pledge Agreement) without the consent of Lender or except as expressly permitted under the Collar Confirmations (including, for the avoidance of doubt, in connection with a Physical Settlement election thereunder); provided that it shall be an Additional Termination Event solely with respect to a portion of the Transactions proportionate to the Collateral Units subject to such “Exchange Notice”, in accordance with Section 3(e)(vi) below;
(v) the redemption by the Units Issuer of any Collateral Units (as defined in the Pledge Agreement) pursuant to Section 3.2(b)(iii) of the LLC Agreement or otherwise if Borrower has not, within 5 Local Business Days following such redemption, pledged to Lender additional Units and/or Shares equal to the number of Collateral Units redeemed; provided that it shall be an Additional Termination Event solely with respect to a portion of the Transactions proportionate to such Collateral Units redeemed (and not replaced pursuant to this paragraph clause), in accordance with Section 3(e)(vi) below; and
(vi) Borrower shall have received notice from the Units Issuer pursuant to the Issuer Agreement that the Units Issuer will elect for the Collateral Units (as defined in the Pledge Agreement) to be subject deemed “securities” (within the meaning of Article 8 of the Uniform Commercial Code of any jurisdiction), or Borrower or Lender otherwise becomes aware that such Collateral Units have become such “securities”, and, in each case, Lender shall not have made reasonable arrangements with the Units Issuer or Borrower to Section 9(l) become, upon such effectiveness, perfected by “control” within the meaning of this Confirmation; 44 Include in Additional Call Option Confirmation onlysuch Code by the later of the date the Collateral Units have become such “securities” and the fifth Local Business Day following the date Borrower receives such notice or becomes so aware, as applicable. ▇▇▇▇▇▇ agrees to notify ▇▇▇▇▇▇▇▇ promptly after becoming aware that such Collateral Units have become such “securities.”
Appears in 1 contract
Sources: Revolving Loan Agreement (Newhouse Broadcasting 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:
(A) Counterparty shallmay, within five three Scheduled Trading Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) (which may be by email) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms giving of such Early Conversion Notice shall applytogether with a written representation and warranty by Counterparty that, mutatis mutandis, to this Confirmation]43;
(B) as of the giving date of an such Early Conversion Notice pursuant to subclause (A) above Notice, Counterparty is not, on the date thereof, in possession of any material non-public information regarding Counterparty or the Shares, shall constitute an Additional Termination Event as provided in this Section 9(i)(iclause (i);
(CB) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]15 and (y) the Number of Options as of the Conversion Date for such Early Conversion; provided that settlement with respect to any such Early Termination Date shall occur on or as promptly as commercially reasonably practicable after the date of payment of the amount of cash (if any) and/or delivery of the number of Shares (if any) upon settlement of the conversion of the relevant Affected Convertible Notes;
(DC) 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 15 Include in Additional Call Option Confirmation only. 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 ;
(D) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) 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 that results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, multiplied by then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (3A) 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) the sum of (i) the amount of cash paid pursuant to the Holder (as such term is defined in the IndentureSection 10.01(i) 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteIndenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 14.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]23;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]24 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five seven Scheduled Trading 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”)[; provided that, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]22; provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 the later of (x) one Scheduled Trading Day following the 21 Include for ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. 22 Include in Additional Call Option Confirmation only. Conversion Date for such Early Conversion and (y) the date on or as promptly as reasonably practicable after which Counterparty provides the related settlement date for the conversion of such Affected Convertible Noteswritten notice described in Section 9(i)(i)(A) above) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]23 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 NoteNote (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price on the relevant date of paymentPrice, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteUSD 1,000;
(D) Counterparty shall notify Dealer (which notice may, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date;
(E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph 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
(F) 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 subject 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 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 9(l6(b) of this Confirmation; 44 the Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). 23 Include in Additional Call Option Confirmation only.
(iii) Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, 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 Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Indenture. Any 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 and the representations by Counterparty set forth in Section 8(a)(vi) as of the 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, mutatis mutandis, to this Confirmation]24. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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 later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) 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]25, 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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction.
Appears in 1 contract
Sources: Call Option Transaction (Zynga Inc)
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any conversion of a Convertible Note occurring prior to March 15, 2030 (any such conversion, an “Early Conversion 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 shallmay, within five ten (10) Scheduled Trading Days of the date on which the Holder of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section [14.02(c)]29 of the Indenture (the “Conversion Date Date”) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer (which Early Conversion Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not, on the date of such Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or the Shares) 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 thatin this clause (i) (provided that Counterparty acknowledges its responsibilities under applicable securities laws and the Companies Law, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of any “delivery of an Early Conversion Notice” );[ and further provided that any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Transaction Confirmation letter agreement dated September [__], 2025 between Dealer and Counterparty (the “Base Call Option Confirmation”) shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]30;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option ConfirmationTransaction ), if any, that relate to such Affected 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 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)]44 terminated)]31 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.;
Appears in 1 contract
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
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 shallshall 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.
(ii) Promptly (and in any event within five Scheduled Trading Days Days) following any (i) repurchase (which, for the avoidance of doubt, includes any exchange transaction) and cancellation of Convertible Notes, including without limitation pursuant to Article 15 of the Conversion Date for Indenture in connection with a “Fundamental Change” (as defined in the Indenture) or (ii) any Convertible Notes are redeemed (whether pursuant to Section 16.01 of the Indenture or otherwise) by Counterparty and are no longer outstanding under the Indenture, (such Early Conversionevent, provide written notice (an a “Early Conversion NoticeRepurchase Event”) to ), Counterparty may notify Dealer specifying in writing of such Repurchase Event and the number of Convertible Notes surrendered for conversion on subject to such Conversion Date Repurchase Event (any such Convertible Notesnotice, a “Repurchase Notice”). Notwithstanding anything to the contrary in this Confirmation, the “Affected Convertible Notes”)[; provided receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, any “Early Conversion Notice” delivered to Dealer pursuant to as of the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms date of such Early Conversion Notice shall applyRepurchase Notice, mutatis mutandisCounterparty is not in possession of any material non-public information regarding Counterparty or the Shares, to this Confirmation]43;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion NoticeRepurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day as an Early Termination Date following receipt of such Repurchase Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the conversion of such Affected Convertible Notesrelevant Repurchase Event) as an Early Termination Date with respect to the portion of the this Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes specified in such Repurchase Notice [minus the number of “Affected Number of Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for Notes]17 divided by 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 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)]44 Applicable Percentage and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the this Transaction and a Number of Options equal to the Affected Number number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (3) no adjustment to the “Conversion Rate” (as defined in the Indenture) for the Convertible Notes has occurred pursuant to any Excluded Provision, (4) the corresponding Convertible Notes remaining outstanding as if the circumstances related to the Repurchase Event had not occurred, (5) the relevant Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, and (z6) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note 17 Include for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
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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:[Reserved].
(Aii) Counterparty shall, within five [Reserved].
(iii) Within twenty (20) Scheduled Trading Days following any repurchase, redemption, exchange or conversion (a “Repayment Event”) of the Conversion Date for Convertible Notes, Counterparty may notify Dealer in writing (any such Early Conversionnotice, provide written notice (an a “Early Conversion Repayment Notice”) to Dealer specifying of (i) such Repayment Event, (ii) the aggregate principal amount of Convertible Notes so repurchased, redeemed, exchanged or converted, and (iii) the number of Options to be terminated pursuant to the provisions of this Section 9(g)(iii) as a result of such Repayment Event (which number of Options shall not be greater than the number of Options (for the avoidance of doubt, taking into account the Option Entitlement) with an aggregate number of underlying Shares that corresponds to the aggregate number of Shares underlying the aggregate principal amount of Convertible Notes surrendered for conversion on such Conversion Date specified in clause (such Convertible Notes, the “Affected Convertible Notes”ii))[; provided that, that any “Early Conversion Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion a Repayment Notice pursuant to this Confirmation and the terms of such Early Conversion Repayment Notice shall apply, mutatis mutandis, to this Confirmation]43;
(BConfirmation]35. Such Repurchase Notice shall contain the representation and warranty that Counterparty is not, on the date thereof, in possession of any material non-public information with respect to Counterparty or the Shares. Counterparty acknowledges its responsibilities under applicable securities laws and the Companies Law, and in particular Section 9 and Section 10(b) of the giving Exchange Act and the rules and regulations thereunder, in respect of an Early Conversion any delivery of a Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(g)(iii);
(C) upon . Upon receipt of any such Early Conversion Repayment Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Repayment Notice 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 conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Repayment Options”) equal to the lesser of (A) [(x)] the number of Options specified to be terminated pursuant to the provisions of this Section 9(g)(iii) in the Repayment Notice[,minus (y) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Repayment 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 Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 terminated)]36, and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) 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 number of Repayment Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
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Sources: Call Option Transaction (Check Point Software Technologies LTD)
Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect conversion of Convertible Notes for which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder:
“Conversion Date” (as such term is defined in the Indenture) occurs prior to the first Valid Day of the Settlement Averaging Period (an “Early Conversion”): (A) Counterparty shallmay, within five ten (10) Scheduled Trading Days of the “Conversion Date Date” (as such term is defined in the Indenture) for such Early ConversionConversion but in no event on or following the first Valid Day of the Settlement Averaging Period, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such “Conversion Date Date” (as such term is defined in the Indenture) (such Convertible Notes, the “Affected Convertible Notes”)[; provided that, [any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation Transaction letter agreement entered into between Dealer and Counterparty on [_______], 2024 (the “Base Call Option Confirmation”) shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;
Confirmation and]21 such Early Conversion Notice shall contain a representation and warranty that Counterparty is not giving such Early Conversion Notice on the basis of any material non-public information with respect to Counterparty or the Shares in respect of such Early Conversion and the delivery of such Early Conversion Notice. The giving of any such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (A); (B) the giving receipt by Dealer from Counterparty of an any Early Conversion Notice pursuant to subclause (ANotice, within the applicable time period set forth in Section 9(g)(i)(A) above of this Confirmation shall constitute an Additional Termination Event as provided in this Section 9(i)(i9(g);
; (C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected Convertible Notes [minus the “Affected Number of Options” (as such term is defined in the Base Call Option Confirmation), if any, that relate to such Affected 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 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)]44 and (y) the Number of Options as of the Conversion Date 20 Include for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable mannerapplicable Dealers. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note 21 Insert for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyConfirmation.
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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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation];
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
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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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation Confirmation, and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation]25. 24 Include for applicable Dealers. 25 Insert for Additional Call Option Confirmation.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]26 and (y) the Number of Options as of the Conversion Date for such Early Conversion;.
(DC) any Any payment hereunder with respect to such termination pursuant to this Section 9(i)(i) 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 to the Holder “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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below (the “Synthetic Instrument AIP Table”) based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed belowin the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Affected Unwind Dates immediately preceding and immediately following the relevant Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 . 26 Include in Additional Call Option Confirmation only.. Affected Unwind Date Synthetic Instrument Adjusted Issue Price per Convertible Note August [___], 2025 USD [_______] February 15, 2025 USD [_______] August 15, 2026 USD [_______] February 15, 2026 USD [_______] August 15, 2027 USD [_______] February 15, 2027 USD [_______] August 15, 2028 USD [_______] February 15, 2028 USD [_______] August 15, 2029 USD [_______] February 15, 2029 USD [_______] August 15, 2030 USD 1,000.00
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Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in Confirmation if an event of default with respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by occurs under the relevant converting Holder:
terms of the Convertible Notes as set forth in Section 6.01 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 shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shallshall 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.
(ii) Promptly (but in any event within five three Scheduled Trading Days Days) following any repurchase and cancellation of Convertible Notes, including without limitation pursuant to Articles 15 or 16 of the Conversion Date for such Early Conversion, provide written notice (Indenture in connection with a “Fundamental Change” or an “Early Conversion NoticeOptional Redemption” (as each such term is defined in the Indenture) (a “Convertible Notes Repurchase Event”), Counterparty shall (in the case of a Fundamental Change) and may, but shall not be required to (in the case of any other Convertible Notes Repurchase Event), notify Dealer specifying in writing of such repurchase and cancellation and the number of Convertible Notes surrendered for conversion on in USD 1,000 principal amount so repurchased and cancelled (any such Conversion Date (such Convertible Notesnotice, the a “Affected Convertible NotesNotes Repurchase Notice”), which Notes Repurchase 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 such repurchase and cancellation and its delivery of such Notes Repurchase Notice[; provided that, that any “Early Conversion Notes Repurchase Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion a Notes Repurchase Notice pursuant to this Confirmation and the terms of such Early Conversion Notes Repurchase Notice shall apply, mutatis mutandis, to this Confirmation]43;
Confirmation]. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (Bx) any Notes Repurchase Notice and (y) in the giving case of an Early Conversion Notice pursuant a Convertible Notes Repurchase Event other than a Convertible Notes Repurchase Event in connection with a “Fundamental Change”, a written representation and warranty delivered by Counterparty to subclause (A) above Dealer that, as of the date of such Notes Repurchase Notice, Counterparty is not in possession of any material nonpublic information regarding Counterparty or the Shares, in each case, within the applicable time period set forth in the preceding sentence, shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon paragraph. Upon receipt of any such Early Conversion NoticeNotes Repurchase Notice and the related written representation and warranty (if applicable), Dealer shall promptly designate an Exchange Business Day following receipt of such Notes Repurchase Notice (which in no event shall be earlier than the related repurchase settlement date for such Convertible Notes) 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 conversion of such Affected Convertible Notes) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Repurchase Options”) equal to the lesser of (xA) the 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. number of Affected such Convertible Notes specified in such Notes Repurchase Notice, [minus the “Affected Number of Repurchase 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 Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Repurchase Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notes Repurchase Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]44 terminated)] and (yB) the Number of Options as of the Conversion Date for date Dealer designates such Early Conversion;
(D) any 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 (x1) 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 number of Repurchase Options, (y2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z3) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Additional Termination Event pursuant to this paragraph Section 6 of the Agreement, Dealer shall be subject assume (1) the relevant Convertible Notes Repurchase Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions of, by or on behalf of Counterparty leading thereto had not occurred, (2) no adjustments to Section 9(lthe Conversion Rate have occurred pursuant to any Excluded Provision and (3) of this Confirmation; 44 Include in Additional Call Option Confirmation onlythe corresponding Convertible Notes remain outstanding.
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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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]23;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]24 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 to the Holder “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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable mannerUSD 1,000; 22 Include for applicable Dealers. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”)23 Insert for Additional Call Option Confirmation. If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 24 Include in Additional Call Option Confirmation only.
(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” (as such term is defined in the Indenture) 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 the Convertible 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 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” (as such term is defined in the Indenture) 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 10.01(a) or Section 14.07 of the Indenture), in each case, without the consent of Dealer.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]18;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]19 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(D) 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 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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
Sources: Call Option Transaction (Xerox 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:” (as such term is defined in the Indenture):
(A) Counterparty shallmay, within five one Scheduled Trading Days 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 containing the representation and warranty that Counterparty is not, on the date thereof, in possession of any material non-public information with respect to Counterparty or the Shares, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i)[; provided that, and any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]11;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 Options under this Confirmation or under the Base Call Option Confirmation will shall 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)]44 terminated)]12 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 ;
(D) for the avoidance of doubt, in determining the amount payable with in respect of such Affected Transaction pursuant to such termination Section 6 of the Agreement, the Calculation Agent shall not be greater than assume that (1x) the Applicable Percentagerelevant Early Conversion and any conversions, multiplied adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (2y) no adjustments to the “Conversion Rate” (as such term is defined in the Indenture) 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. 11 Include in Additional Call Option Confirmation only. 12 Include in Additional 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 that results in the acceleration of Counterparty’s payment obligations under the Convertible Notes pursuant to the terms of the Indenture, multiplied by then such acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (3A) Counterparty shall be deemed to be the sole Affected Party, (xB) the sum 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.
(iiii) 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 amount 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 cash paid 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 Holder conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the “Holders” (as such term is defined in the Indenture) of an Affected not less than 100% of the principal amount of the Convertible Note upon conversion of such Affected Convertible Note and Notes to amend (iiother than, in each case, any amendment or supplement (x) the number of Shares delivered (if any) pursuant to the Holder (as such term is defined in the IndentureSection 10.01(i) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible NoteIndenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Agent, conforms the Indenture to the description of Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers Notes in the table set forth below based on the date of payment Offering Memorandum or (y) pursuant to Section 14.07 of the amount due with respect to Indenture), in each case, without the relevant Affected Number consent of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlyDealer.
Appears in 1 contract
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 no later than five Scheduled Trading Days after (1) in the case of any such Pre-FCD Conversion, the relevant Conversion Date or (2) in the case of any such Redemption Conversion, the last day of the Conversion Date for such Early Conversionrelevant Redemption Period, provide written notice (an “Early Conversion Notice”) to Dealer specifying (x) in the case of any such Pre-FCD Conversion, the number of Convertible Notes surrendered for conversion on such the relevant Conversion Date or (y) in the case of any such Redemption Conversion, the aggregate number of Convertible Notes surrendered for conversion during the relevant Redemption Period (in each case, such Convertible Notes, the “Affected Convertible Notes”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation]22;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 (1) in the related case of any such Pre-FCD Conversion, the settlement date for the conversion of such the Affected Convertible NotesNotes or (2) in the case of any such Redemption Conversion, the later of (x) the settlement date for the conversion of the Affected Convertible Notes and (y) the Scheduled Trading Day immediately following the date of the relevant Early Conversion Notice) 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated)]23 and (y) the Number of Options as of (I) in the case of any such Pre-FCD Conversion, the relevant Conversion Date for or (II) in the case of any such Early Redemption Conversion, the last day of the relevant Redemption Period;
(DC) 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 TransactionTransaction (and, for the avoidance of doubt, the provisions of Section 9(l) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(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, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the Holder “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 on the relevant settlement date for the conversion of paymentsuch Affected Convertible Notes, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable mannerUSD 1,000; 22 Insert for Additional Call Option Confirmation. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 23 Include in Additional Call Option Confirmation only.
(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” (as such term is defined in the Indenture) 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 (1) in the case of any such Pre-FCD Conversion, the relevant Conversion Date or (2) in the case of any such Redemption Conversion, the last day of the relevant Redemption Period, 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 the Convertible 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 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” (as such term is defined in the Indenture) 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(k) 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 10.01(a) or Section 14.07 of the Indenture), in each case, without the consent of Dealer.
Appears in 1 contract
Sources: Call Option Transaction (Fluor 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 five Scheduled Trading 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”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation.
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) upon 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 settlement date for the conversion of such 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 terminated) and (y) the Number of Options as of the Conversion Date for such Early Conversion;.
(DC) any Any payment hereunder with respect to such termination pursuant to this Section 9(i)(i) 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 to the Holder “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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below (the “Synthetic Instrument AIP Table”) based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed belowin the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing by reference to the numbers in the table below Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates Affected Unwind Dates immediately preceding and immediately following the relevant Affected Unwind Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation only.
Appears in 1 contract
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 five Scheduled Trading 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”)[; provided that) and the anticipated settlement date, any “and the giving of such Early Conversion Notice” Notice shall constitute an Additional Termination Event as provided in this clause (i), and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43Confirmation; provided that any such Early Conversion 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 the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture;
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Trading Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 and (y) the Number of Options as of the Conversion Date for such Early Conversion;
(DC) 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 (32) (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 on 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 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 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 (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration).
(iii) Within five Scheduled Trading Days following any Repayment Event (as defined below), 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 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 receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event 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) as an Early Termination Date with respect to the portion of paymentthe 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 Synthetic Instrument Adjusted Issue Price per number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible NoteNotes, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as determined of such date, the Number of Options shall be reduced by the Calculation Agent in good faith and in a commercially reasonable mannernumber of Repayment Options. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of Any payment of the amount due hereunder with respect to such termination (the relevant Affected “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 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, (3) 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 leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Transaction. “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 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 is repaid prior to the final maturity date of the Convertible Notes (other than as a result of an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to Section 10(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount Holders” (as defined in the preceding sentence Indenture) 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; provided, however, that no Repayment Event shall be determined by occur to the Calculation Agent utilizing extent that the numbers in repurchase is effected pursuant to Section 16.01 of the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind DateIndenture. For the avoidance of doubt, any payment conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to this paragraph the terms of the Indenture shall be subject to Section 9(l) of this Confirmation; 44 Include in Additional Call Option Confirmation onlynot constitute a Repayment Event.
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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 shallmay, within five 15 Scheduled Trading Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer (which Early Conversion Notice shall contain a written representation by Counterparty to Dealer that Counterparty is not, on the date of such Early Conversion Notice, in possession of any material non-public information with respect to Counterparty or the Shares) 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 thatprovided, that any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation letter agreement dated [__], 2025 between the Dealer and Counterparty (the “Base Call Option Confirmation”) shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]43;Confirmation;]42
(B) the giving of an Early Conversion Notice pursuant to subclause (A) above shall constitute an Additional Termination Event as provided in this Section 9(i)(i);
(C) 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 no earlier than one Scheduled Valid Day following the related settlement date Conversion Date for the conversion of such Affected Convertible NotesEarly 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 42 Include for applicable Dealers. 43 Insert for Additional Call Option Confirmation. 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 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)]44 Notes]43 and (y) the Number of Options as of the Conversion Date for such Early Conversion; provided that settlement with respect to any such Early Termination Date shall occur on or as promptly as commercially reasonably practicable after the date of payment of the amount of cash (if any) and/or delivery of the number of Shares (if any) upon settlement of the conversion of the relevant Affected Convertible Notes;
(DC) 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 ;
(1D) the Applicable 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 (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 on the relevant date of payment, minus (y) the Synthetic Instrument Adjusted Issue Price per Convertible Note, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price per Convertible Note” shall mean the amount determined by the Calculation Agent utilizing the numbers in the table set forth below based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Affected Unwind Date”). If the Affected Unwind Date is not listed below, the amount in the preceding sentence shall be determined by the Calculation Agent utilizing the numbers in the table below using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices per Convertible Note for the dates immediately preceding and immediately following the Affected Unwind Date. For the avoidance of doubt, any payment in determining the amount payable in respect of such Affected Transaction pursuant to this paragraph Section 6 of the Agreement, the Calculation Agent shall be subject to Section 9(lassume that (x) of this Confirmation; 44 the relevant Early Conversion and any conversions, 41 Include for applicable Dealers. 42 Include in Additional Call Option Confirmation only. 43 Include in Additional Call Option Confirmation only. adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain 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) Within 15 Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may notify Dealer in writing of such Repayment Event and the number of Convertible Notes subject to such Repayment Event or the number of Convertible Notes subject to such Repayment Event that Counterparty elects to be subject to such Repayment Event (any such notice, a “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]44. Such Repayment Notice shall contain the representation by Counterparty set forth in Section 8(f) hereunder as of the date of such Repayment Notice. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided in this Section 9(i)(ii). Upon receipt of any such Repayment Notice, Dealer shall promptly designate an Exchange Business Day following receipt of such Repayment Notice (which in no event shall be earlier than 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) the number of such Convertible Notes specified in such Repayment Notice [minus the number of Repayment Options (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes (and for 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)]45 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 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, (3) the terminated portion of the Transaction were the sole Affected 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” (as defined in the Indenture) 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. “Repayment Event” means that (i) any Convertible Notes are repurchased (whether pursuant to Section 4.02 of the Indenture or Section 4.03 of the Indenture or otherwise) by Counterparty or any of its subsidiaries (including in connection with, or as a result of, a Fundamental Change (as defined in the Indenture), a redemption, a tender offer, exchange offer or similar transaction or for any other reason), (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 is repaid in full prior to the final maturity date of the Convertible Notes (other than upon acceleration of the Convertible Notes pursuant to Section [7.02] of the Indenture), or (iv) any Convertible Notes are exchanged by or for the benefit of the 44 Include for additional capped call. 45 Include for additional capped call
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Sources: Call Option Transaction (Voyager Technologies, Inc./De)