NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 10 contracts
Samples: CONMED Corp, CONMED Corp, CONMED Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 9 contracts
Samples: Letter Agreement (World Wrestling Entertainmentinc), On Semiconductor Corp, Q2 Holdings, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, Options and (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the number of such Options. For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure; provided that notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective if given after 5:00 p.m. (New York City time) on the applicable Exercise Notice Deadline specified above Deadline, but prior to 5:00 P.M.PM, New York City time, on the fifth Scheduled Valid Day following such the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Option Cash Settlement Amount as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities lawsDeadline and, and in particular Section 9 and Section 10(b) of if appropriate, to delay the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesSettlement Date.
Appears in 8 contracts
Samples: Liberty Media Corp, Liberty Media Corp, Liberty Media Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes, such Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Exercise Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time), on the fifth Scheduled Valid Day following such the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its effect on Dealer’s commercially reasonable hedging and hedge unwind activities for the Transaction (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 8 contracts
Samples: CalAmp Corp., CalAmp Corp., CalAmp Corp.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes, such Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to 12:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. For the avoidance of doubt, if Counterparty fails to give notice as required above when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment or delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure; provided that, notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline but prior to 5:00 p.m. (New York City time), on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the number of shares and/or cash deliverable by Dealer with respect to such options in a commercially reasonable manner as appropriate to reflect the effect on Dealer’s commercially reasonable hedging and hedge unwind activities for the Transaction (including the unwinding of any commercially reasonable hedge position) of Dealer not having received such notice prior to the Exercise Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 8 contracts
Samples: Letter Agreement (AOL Inc.), Letter Agreement (AOL Inc.), Separate Agreement (AOL Inc.)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions and, if applicable, whether such exercise relates to the conversion of Convertible Notes in connection with which holders thereof are entitled to receive additional Shares and/or cash in connection with an adjustment to the Conversion Rate pursuant to Section 5.07 of the Indenture, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, Date and (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datedate Counterparty receives “Shareholder Approval” (as defined in the Indenture), (a) the Relevant Settlement Method for such Options and (b) if the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring during the Final Conversion Period, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if Counterparty has received “Shareholder Approval” (as defined in the Indenture) prior to the 105th Scheduled Valid Day immediately preceding the Expiration Date, if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility 105th Scheduled Valid Day immediately preceding the Expiration Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise in respect of a Conversion Date occurring prior to the Final Conversion Period and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent may adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of such notice not having been received on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 8 contracts
Samples: Letter Agreement (Air Transport Services Group, Inc.), Letter Agreement (Air Transport Services Group, Inc.), Letter Agreement (Air Transport Services Group, Inc.)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Final Conversion Period Start Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (whichwriting, for the avoidance of doubt, may be including by email) , before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such OptionsOptions (including, (ii) if applicable, whether all or any portion of such exercise relates to the scheduled first day conversion of the Settlement Averaging Period Convertible Notes in connection with which holders thereof are entitled to receive additional shares and/or cash pursuant to the adjustment of the Conversion Rate set forth in Section 4.04 of the Indenture) provided that, notwithstanding the foregoing, such notice (and the scheduled related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m., New York City time, on the third Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement DateDate in a commercially reasonable manner, (iii) with respect to the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses, assuming that Dealer maintains commercially reasonable hedge positions) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer in connection with its hedging activities (including the related Convertible Notesunwinding of any hedge position), with such Cash Percentageadjustments made assuming that Dealer maintains commercially reasonable hedge positions, solely resulting from Dealer not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Final Conversion Period Start Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Shares or Settlement in Cash (iiieach as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Relevant Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000.
Appears in 8 contracts
Samples: Letter Agreement (Ironwood Pharmaceuticals Inc), Letter Agreement (Ironwood Pharmaceuticals Inc), Letter Agreement (Ironwood Pharmaceuticals Inc)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Cash (iiias defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000. Counterparty acknowledges its responsibilities under applicable Canadian and United States securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD1,000 that applies pursuant to Section 5.03(A) of the Indenture.
Appears in 7 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) an Authorized Agent on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such OptionsOptions (if the Relevant Settlement Method is other than Net Share Settlement), and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after for which the Free Convertibility Daterelevant “Settlement Averaging Period” would be set forth in clause (iii) of such definition, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding the foregoing, any Notice of Exercise or Notice of Final Settlement Method and the related automatic exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following such Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this sentence, the Calculation Agent shall have the right (i) to postpone the Settlement Date and (ii) to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, commercially reasonable hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to such Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended past the close of trading for the regular trading session for the Exchange, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 7 contracts
Samples: Letter Agreement (Integra Lifesciences Holdings Corp), Integra Lifesciences Holdings Corp, Integra Lifesciences Holdings Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 6 contracts
Samples: Letter Agreement (Conmed Corp), Conmed Corp, Conmed Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount of Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, Date and (iii) the Relevant if Counterparty elects a Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible NotesOptions other than Net Share Settlement, such Cash Percentagenotice shall also include information, representations, acknowledgments and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and above (ivsuch deadline in clause (A) aboveor (B), the “Notice Deadline”). Notwithstanding the foregoing, other than in respect any Notice of any Options relating to Convertible Notes with a Conversion Date occurring on Exercise or after the Free Convertibility Date, such notice (Notice of Final Settlement Method and the related automatic exercise of Options) the related Options shall be effective if given after the applicable relevant Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following such Notice DeadlineDeadline and, in respect of any Options in respect of which event such notice is delivered after the relevant Notice Deadline pursuant to this sentence, the Calculation Agent shall have the right (i) to postpone the Settlement Date and (ii) to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or amount of cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losseslosses and gains) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 6 contracts
Samples: Workday, Inc., Workday, Inc., Workday, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, Options (and the number of $1,000 principal amount of Notes being converted on such Conversion Date) and (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for number of such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (and the “Notice number of Final Settlement Method”) in respect $1,000 principal amount of all Notes being converted on such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) aboveConversion Date). Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above relevant deadline for such notice, but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Exchange Business Day following the date of such Notice Deadlinedeadline, in which event case the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Option Cash Settlement Amount as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such Notice Deadlinethe relevant deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, in respect of any election of a settlement method with respect the Valuation Time shall be accordingly extended to the Convertible Notesextent reported transactions in the Shares are used to compute Relevant Price.
Appears in 6 contracts
Samples: Ezcorp Inc, Ezcorp Inc, Ezcorp Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes (other than Convertible Notes being converted upon an Early Conversion or a Make-Whole Conversion), Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised Expiration Date (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty must provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately following the Free Convertibility Date specifying (i) the information required in clauses (iii) Relevant Settlement Method for such Options and the settlement method for the related Convertible Notes, and (ivii) aboveif the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”). Notwithstanding the foregoing, other than in respect any Notice of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (Exercise and the related automatic exercise of Options) the related Options shall be effective if given after the applicable Exercise Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following such the Exercise Notice DeadlineDeadline and, in respect of any Options in respect of which event such notice is delivered after the Exercise Notice Deadline pursuant to this provision, the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or amount of cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs and losses (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer’s not having received such notice on or prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 6 contracts
Samples: Intercept Pharmaceuticals Inc, Intercept Pharmaceuticals Inc, Intercept Pharmaceuticals Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, (iii) in which event the Relevant Settlement Method for Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with hedge position) as a Conversion Date occurring on or after the Free Convertibility Date, (A) result of its not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately preceding the Expiration Date adjusted delivery obligation described in this proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further, that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) aboveif the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”). Notwithstanding If the foregoing, Relevant Settlement Method for such Options is other than Net Share Settlement in respect the Notice of any Options relating Final Settlement Method, the Notice of Final Settlement Method shall contain a written representation by Counterparty to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City timeDealer that Counterparty is not, on the fifth Scheduled Valid Day following such date of the Notice Deadlineof Final Settlement Method, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, possession of any material non-public information with respect to such exercise of Options, as appropriate to reflect Counterparty or the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesShares.
Appears in 5 contracts
Samples: Callaway Golf Co, Callaway Golf Co, Callaway Golf Co
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Early Exercise Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount of Convertible Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount” and such notice, an “Early Exercise Notice”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Date (A) such notice (“Standard Exercise Notice”) may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date (the “Standard Exercise Notice Deadline”) and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date (the “Settlement Method Notice Deadline” and collectively together with the Early Exercise Notice Deadline and the Standard Exercise Notice Deadline, each a “Notice Deadline”) specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related automatic exercise of such Options) ), an Early Exercise Notice, a Standard Exercise Notice or a Notice of Final Settlement Method shall be effective if given after the applicable relevant Notice Deadline specified above therefor but prior to 5:00 P.M., PM New York City time, on the fifth Scheduled Valid Trading Day following such after the corresponding Notice Deadline, in which event case the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunderamount of cash and/or the number of Shares, with respect to such as applicable, due upon exercise of Options, the relevant Option(s) and/or the relevant Settlement Date as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it its not having received such notice prior to such the corresponding Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Valuation Time: The close of trading of the regular trading session on the Exchange.
Appears in 5 contracts
Samples: Atlas Air Worldwide Holdings Inc, Atlas Air Worldwide Holdings Inc, Atlas Air Worldwide Holdings Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the maximum amount of cash per Convertible Note that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 5 contracts
Samples: Knowles Corp, Knowles Corp, Knowles Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify (the information required in clause (i“Notice Deadline”) above, and (B) specifying the number of such Options; provided that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 5 contracts
Samples: Purchase Agreement (KAMAN Corp), Purchase Agreement (KAMAN Corp), Purchase Agreement (KAMAN Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, such notice need not specify the information referred to in clauses (iii) or (iv) above, but Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Exercise Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time), on the fifth Scheduled Valid Day following such the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its effect on Dealer's commercially reasonable hedging and hedge unwind activities for the Transaction (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 5 contracts
Samples: Letter Agreement (Avaya Holdings Corp.), Letter Agreement (Avaya Holdings Corp.), Avaya Holdings Corp.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (whichwriting, for the avoidance of doubt, may be including by email) , before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (including, if applicable, whether all or any portion of such exercise relates to the conversion of the Convertible Notes in connection with which holders thereof are entitled to receive additional shares and/or cash pursuant to the adjustment of the Conversion Rate set forth in Section 4.04 of the Indenture), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date65th Scheduled Valid Day preceding June 15, 2022, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date or prior to December 15, 2021 specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 4 contracts
Samples: Ironwood Pharmaceuticals Inc, Ironwood Pharmaceuticals Inc, Ironwood Pharmaceuticals Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is not Net Share Settlement, Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes (the “Specified Cash Amount”), and such Cash Percentagenotice shall also include the information, representations, acknowledgements and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on or prior to the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate well as the information, representations, acknowledgements and agreements required pursuant to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined “Settlement Method Election Conditions” below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 4 contracts
Samples: Letter Agreement (Tower Group, Inc.), Letter Agreement (Tower Group, Inc.), Letter Agreement (Tower Group, Inc.)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes (other than Convertible Notes being converted upon an Early Conversion or a Make-Whole Conversion), Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify (the information required in clause (i“Exercise Notice Deadline”) above, and (B) of the number of such Options; provided that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty must provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Final Conversion Period Start Date specifying (i) the information required in clauses (iii) Relevant Settlement Method for such Options and the settlement method for the related Convertible Notes, and (ivii) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) (and, if Counterparty fails to timely provide such notice, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method that is not Net Share Settlement with a Specified Cash Amount of USD 1,000 with respect to the Convertible Notes.
Appears in 4 contracts
Samples: Mercadolibre Inc, Mercadolibre Inc, Mercadolibre Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount of Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, Date and (iii) the Relevant if Counterparty elects a Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible NotesOptions other than Net Share Settlement, such Cash Percentagenotice shall also include information, representations, acknowledgments and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding the foregoing, other than in respect any Notice of any Options relating to Convertible Notes with a Conversion Date occurring on Exercise or after the Free Convertibility Date, such notice (Notice of Final Settlement Method and the related automatic exercise of Options) the related Options shall be effective if given after the applicable date on which such Notice Deadline specified above of Exercise or Notice of Final Settlement Method is due as set forth in the immediately preceding paragraph (the “Notice Deadline”) but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following such Notice DeadlineDeadline and, in respect of any Options in respect of which event such notice is delivered after the relevant Notice Deadline pursuant to this sentence, the Calculation Agent shall have the right (i) to postpone the Settlement Date and (ii) to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or amount of cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losseslosses and gains) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 4 contracts
Samples: ServiceNow, Inc., ServiceNow, Inc., ServiceNow, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day Expiration Date of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datethat, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately following the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options and (iv2) above. Notwithstanding if the settlement method for the related Convertible Notes is not “Settlement in Shares” or “Settlement in Cash” (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”); provided, further, that, notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of OptionsOptions hereunder) shall be effective if given after the applicable Notice Deadline notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid third Exchange Business Day following such Notice Deadlinenotice deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it its not having received such notice prior to such Notice Deadlinenotice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (as defined below) the “Exchange Act”), and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. For the avoidance of doubt, if the relevant Conversion Date for any Convertible Notes occurs prior to the Free Convertibility Date, no Options shall be subject to exercise in connection with such Early Conversion, and such conversion shall be subject to the provisions set forth in Section 9(h)(i) hereof.
Appears in 4 contracts
Samples: Unisys Corp, Unisys Corp, Unisys Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Supplemental Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date (the “Final Notice Deadline”) and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes; provided further, that notwithstanding the foregoing, any Notice of Exercise or Notice of Final Settlement Method and the related automatic exercise of the related Options shall be effective if given after the Notice Deadline or the Final Notice Deadline, as the case may be, but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following such Notice Deadline or such Final Notice Deadline, as applicable, except that with respect to any Options in respect of which such Notice of Exercise or such Notice of Final Settlement Method, as the case may be, is delivered after such Notice Deadline or such Final Notice Deadline, as applicable, pursuant to this proviso, the Calculation Agent shall have the right (i) to postpone the Settlement Date and (ii) to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs and expenses (including trading losses) incurred by Dealer in connection with its hedging activities as a result of Dealer not having received such Notice of Exercise or such Notice of Final Settlement Method, as the case may be, on or prior to such Notice Deadline or such Final Notice Deadline, as applicable.
Appears in 4 contracts
Samples: Letter Agreement (Amag Pharmaceuticals Inc.), Letter Agreement (Amag Pharmaceuticals Inc.), Letter Agreement (Amag Pharmaceuticals Inc.)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for before the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) Deadline of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 13.03 of the Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, and (iii) the Relevant if Counterparty elects a Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible NotesOptions other than Net Share Settlement, such Cash Percentagenotice shall also include the information and acknowledgements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding ; provided, further, that any “Notice of Exercise” or “Notice of Final Settlement Method” delivered to Dealer pursuant to the foregoingBase Call Option Confirmation shall be deemed to be a Notice of Exercise or Notice of Final Settlement Method, other than in respect of any Options relating as the case may be, pursuant to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (this Confirmation and the related exercise terms of Options) such Notice of Exercise or Notice of Final Settlement Method shall be effective if given after apply, mutatis mutandis, to this Confirmation. Valuation Time: The close of trading of the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially Valuation Time in its reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 4 contracts
Samples: Shutterfly Inc, Shutterfly Inc, Shutterfly Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” aboveDefinitions, in order to exercise any Exercisable Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding prior to the scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Exercisable Options, and (iv) if the Relevant Settlement Method for such Exercisable Options is not Net Share Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to holders of the related Convertible NotesNotes (the “Specified Cash Amount”), such Cash Percentagetogether with any representations, acknowledgements and agreements set forth under “Settlement Method Election Conditions” below; provided that in respect of any Exercisable Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility DateDecember 1, 2013, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Exercisable Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date or prior to December 1, 2013 specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than ; provided further that in respect of any Exercisable Options relating to any Convertible Notes with a for which the relevant Conversion Date occurring occurs after the Convertible Notes have been called for redemption (including after December 1, 2013) pursuant to Section 10.01 of the Supplemental Indenture, (A) such notice may be given on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth second Scheduled Valid Day following such Notice Deadline, in which event immediately preceding the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act Scheduled Redemption Date (as defined below) and need only specify the rules information required in clause (i) above and regulations thereunder, in respect (B) Dealer shall have received a Notice of any election of a settlement method with respect to the Convertible NotesEarly Redemption as specified below.
Appears in 4 contracts
Samples: Letter Agreement (Take Two Interactive Software Inc), Letter Agreement (Take Two Interactive Software Inc), Take Two Interactive Software Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing before (which, for the avoidance of doubt, may be by emaili) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised or (ii) 5:00 p.m. (New York City time) on the “Notice Deadline”fifth Scheduled Valid Day immediately following the scheduled first day of the Settlement Averaging Period for the Options being exercised (in which case the Calculation Agent will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) due to such notification occurring after the time specified in the immediately preceding clause (i)) of (iw) the number of such Options, Options (without regard to any adjustments by the Calculation Agent in accordance with the immediately preceding clause (ii)) and (x) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iiiy) the Relevant Settlement Method for such Options, and (ivz) if Counterparty has elected a Cash Percentage the Relevant Settlement Method for such Options is not Net Share Settlement (as defined below), the related percentage of each Share issuable upon conversion in excess of the principal portion of the Convertible Notes, such Notes being converted that will be paid in cash (the “Cash Percentage”), and such notice shall also include the information, representations, acknowledgements and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (iw) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on or prior to the Free Convertibility Date specifying the information required in clauses (iiiy) and (ivz) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate well as the information, representations, acknowledgements and agreements required pursuant to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined “Settlement Method Election Conditions” below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 4 contracts
Samples: Letter Agreement (Integra Lifesciences Holdings Corp), Letter Agreement (Integra Lifesciences Holdings Corp), Letter Agreement (Integra Lifesciences Holdings Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under opposite the caption “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing on or prior to 5:00 p.m. (whichNew York City time) on the second Scheduled Valid Day immediately preceding the Expiration Date of the number of such Options (the “Exercise Notice Deadline”); provided that, notwithstanding the above, if Counterparty fails to give such Notice of Exercise by the Exercise Notice Deadline in respect of any exercise of Options hereunder but Counterparty subsequently delivers such Notice of Exercise to Dealer prior to 5:00 p.m. (New York City time) on the fifth “Business Day” following the “Maturity Date” (each as defined in the Indenture) (the “Extended Exercise Notice Deadline”), such Notice of Exercise shall be effective and the Calculation Agent may make appropriate adjustments to reflect any additional losses, costs or expenses actually incurred by Dealer in maintaining a commercially reasonable hedge position as a result of Dealer receiving the notice after the Exercise Notice Deadline; provided further that, if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the avoidance Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (z) Combination Settlement, Counterparty shall be required to provide Dealer with a separate written notice (the “Notice of doubt, may be by emailFinal Settlement Method”) before on or prior to 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised Free Convertibility Date specifying (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii1) the Relevant Settlement Method for such Options, Options and (iv2) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not “Settlement in Shares” or “Settlement in Cash” (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to pay to Holders (as such Cash Percentage; provided that term is defined in respect the Indenture) of any Options relating to the related Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement MethodSpecified Cash Amount”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (as defined below) the “Exchange Act”), and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. For the avoidance of doubt, if the relevant Conversion Date for any Convertible Notes occurs prior to the Free Convertibility Date, no Options shall be subject to exercise in connection with such Early Conversion, and such conversion shall be subject to the provisions set forth in Section 9(h)(i) of this Confirmation.
Appears in 4 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (Counterparty, or the Trustee under the Indenture or any other agent authorized by the on behalf of Counterparty) , must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period (the “Exercise Notice Deadline”) for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes (the “Specified Cash Amount”) and (v) the settlement date(s) for delivery of the consideration in respect of each related Convertible Note, and such notice shall be deemed to include the information, representations, acknowledgements and agreements required pursuant to “Settlement Method Election Conditions” below; provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 P.M., New York City time, on the fifth Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause clauses (i) and (v) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on or prior to the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding , as well as the foregoinginformation, other than representations, acknowledgements and agreements deemed to be included in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, as set forth in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined “Settlement Method Election Conditions” below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 4 contracts
Samples: Letter Agreement (Hawaiian Holdings Inc), Letter Agreement (Hawaiian Holdings Inc), Hawaiian Holdings Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount of Convertible Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Date (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Valuation Time: The close of trading of the regular trading session on the Exchange.
Appears in 4 contracts
Samples: Atlas Air Worldwide Holdings Inc, Atlas Air Worldwide Holdings Inc, Atlas Air Worldwide Holdings Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions, in order to exercise any Exercisable Options, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day prior to the scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised of (i) the number of such Options and (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date; provided that in respect of Exercisable Options relating to Convertible Notes with a Conversion Date occurring on or after the Changeover Date, such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the number of such Exercisable Options. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Exercisable Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised (the “Notice Deadline”) of (i) the number of such Exercisable Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Exercisable Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Exercisable Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Changeover Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) abovenumber of such Exercisable Options, and (B) if the Relevant Settlement Method for such Exercisable Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Changeover Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 4 contracts
Samples: TTM Technologies Inc, TTM Technologies Inc, TTM Technologies Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. For the avoidance of doubt, if Counterparty fails to give notice as required above when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment or delivery in respect of such exercise (but not in respect of any subsequent exercise) shall be permanently extinguished, and late notice shall not cure such failure.
Appears in 4 contracts
Samples: Auxilium Pharmaceuticals Inc, Auxilium Pharmaceuticals Inc, Auxilium Pharmaceuticals Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions and, if applicable, whether such exercise relates to the conversion of Convertible Notes in connection with which holders thereof are entitled to receive additional Shares and/or cash in connection with an adjustment to the Conversion Rate pursuant to Section 14.03 of the Indenture, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement DateDate and (iii) in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the date Counterparty receives “Shareholder Approval” (as defined in the Indenture), (iiia) the Relevant Settlement Method for such Options, Options and (ivb) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if Counterparty has received “Shareholder Approval” (as defined in the Indenture) prior to the Free Convertibility Date, if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent may adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of such notice not having been received on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 3 contracts
Samples: Letter Agreement (Invacare Corp), Letter Agreement (Invacare Corp), Letter Agreement (Invacare Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the such Options being exercised (the “Notice Deadline”) of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.07 of the Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and such notice shall also include the information (including with respect to the Specified Cash Amount) and acknowledgments required pursuant to “Settlement Method Election Conditions” below; provided that if no Specified Cash Amount is specified in any Notice of Exercise, such Notice of Exercise shall nonetheless be valid and the Specified Cash PercentageAmount shall be deemed, for purposes of determining Dealer’s delivery obligation hereunder, to be USD 1,000; provided further that, notwithstanding the foregoing, for any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such notice and the related automatic exercise of such Options shall be effective if given after the relevant Notice Deadline but prior to (x) in the case of any Options relating to Convertible Notes surrendered for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion pursuant to Section 4.04 of the Indenture and such designation is accepted by such financial institution, 5:00 p.m. (New York City time) on the 70th Scheduled Valid Day following the Notice Deadline (provided that such notice pursuant to this clause (x) must be given promptly following the time Counterparty first knows, or reasonably should know, of the occurrence of the event or condition with respect to such financial institution that would give rise to Counterparty’s obligation to deliver the relevant conversion consideration for such Convertible Notes pursuant to Section 4.04(c) of the Indenture) and in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (x), the “Settlement Averaging Period” shall be deemed to be the 60 consecutive Valid Days beginning on, and including, the third Valid Day immediately following the date Dealer receives the related Notice of Exercise, or (y) otherwise, 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (y), the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline; provided, further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding , as well as the foregoinginformation (including with respect to the Specified Cash Amount) and acknowledgements required pursuant to “Settlement Method Election Conditions” below; provided, other than in respect further, that any “Notice of any Options relating Exercise” or “Notice of Final Settlement Method” delivered to Convertible Notes with Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Conversion Date occurring on Notice of Exercise or after Notice of Final Settlement Method, as the Free Convertibility Datecase may be, such notice (pursuant to this Confirmation and the related exercise terms of Options) such Notice of Exercise or Notice of Final Settlement Method shall be effective if given after apply, mutatis mutandis, to this Confirmation. Valuation Time: The close of trading of the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially Valuation Time in its reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 3 contracts
Samples: Chart Industries Inc, Chart Industries Inc, Chart Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the such Options being exercised (the “Notice Deadline”) of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.07 of the Supplemental Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if applicable, the percentage of each Share otherwise issuable upon conversion in excess of the principal portion of the Convertible Notes being converted that Counterparty has elected a to pay in cash pursuant to Section 4.03(a)(1) of the Supplemental Indenture (the “Cash Percentage”), and such notice shall also include the information (including with respect to the Cash Percentage) and acknowledgements required pursuant to “Settlement Method Election Conditions” below; provided that if no Cash Percentage is specified in any Notice of Exercise, such Notice of Exercise shall nonetheless be valid and the Cash Percentage shall be deemed, for purposes of determining Dealer’s delivery obligation hereunder, to be 0%; provided further that, notwithstanding the foregoing, for any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such notice and the related automatic exercise of such Options shall be effective if given after the relevant Notice Deadline but prior to (x) in the case of any Options relating to Convertible NotesNotes surrendered for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion pursuant to Section 4.04 of the Supplemental Indenture and such designation is accepted by such financial institution, 5:00 p.m. (New York City time) on the 50th Scheduled Valid Day following the Notice Deadline (provided that such Cash Percentagenotice pursuant to this clause (x) must be given promptly following the time Counterparty first knows, or reasonably should know, of the occurrence of the event or condition with respect to such financial institution that would give rise to Counterparty’s obligation to deliver the relevant conversion consideration for such Convertible Notes pursuant to Section 4.04(c) of the Supplemental Indenture ) and in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (x), the “Settlement Averaging Period” shall be deemed to be the 40 consecutive Valid Days beginning on, and including, the third Valid Day immediately following the date Dealer receives the related Notice of Exercise, or (y) otherwise, 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (y), the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline; provided provided, further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above, as well as the information (including with respect to the Cash Percentage) and acknowledgements required pursuant to “Settlement Method Election Conditions” below. Notwithstanding Valuation Time: The close of trading of the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially Valuation Time in its reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 3 contracts
Samples: Chart Industries Inc, Chart Industries Inc, Chart Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and need only specify the information required related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, in clause which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Date in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (iincluding, but not limited to, losses as a result of hedging mismatches and market losses) aboveand expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge position), solely resulting from Dealer not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in this proviso can never be less than zero and (B) can never require any payment by Counterparty); provided further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the Relevant Settlement Method is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in clauses the Indenture) of the related Convertible Notes (iiithe “Specified Cash Amount” which, for the avoidance of doubt, must be at least USD 1,000) and (iv) above. Notwithstanding the foregoingif Counterparty fails to timely provide such Notice of Final Settlement Method, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) it shall be effective if given after deemed to have provided a Notice of Final Settlement Method indicating that the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineRelevant Settlement Method is Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes where the corresponding Relevant Settlement Method is not Net Share Settlement.
Appears in 2 contracts
Samples: Letter Agreement (Kosmos Energy Ltd.), Kosmos Energy Ltd.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (iiand the related exercise of Options hereunder) shall be effective if given after the scheduled first day of applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Averaging Period and Date in a commercially reasonable manner, with respect to the scheduled Settlement Date, (iii) the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notesunwinding of any hedge position), solely resulting from Dealer not having received such Cash Percentagenotice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise Convertible Notes (the “Specified Cash Amount”). If Counterparty fails to timely provide such Notice of Options) Final Settlement Method, it shall be effective if given after deemed to have provided a Notice of Final Settlement Method indicating that the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on Relevant Settlement Method is Net Share Settlement and that the fifth Scheduled Valid Day following such Notice Deadline, in which event settlement method for the Calculation Agent shall have related Convertible Notes is the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Default Settlement Method (as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinedefined below). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not the Default Settlement Method.
Appears in 2 contracts
Samples: Microchip Technology Inc, Zynga Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, (iii) in which event the Relevant Settlement Method for Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in good faith and in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with hedge position) as a Conversion Date occurring on or after the Free Convertibility Date, (A) result of its not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately adjusted delivery obligation described in the preceding the Expiration Date proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further, that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Letter Agreement (Pegasystems Inc), Letter Agreement (Pegasystems Inc)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the such Options being exercised (the “Notice Deadline”) of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.07 of the Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and such notice shall also include the information (including with respect to the Specified Cash Amount) and acknowledgments required pursuant to “Settlement Method Election Conditions” below; provided that if no Specified Cash Amount is specified in any Notice of Exercise, such Notice of Exercise shall nonetheless be valid and the Specified Cash PercentageAmount shall be deemed, for purposes of determining Dealer’s delivery obligation hereunder, to be USD 1,000; provided further that, notwithstanding the foregoing, for any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such notice and the related automatic exercise of such Options shall be effective if given after the relevant Notice Deadline but prior to (x) in the case of any Options relating to Convertible Notes surrendered for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion pursuant to Section 4.04 of the Indenture and such designation is accepted by such financial institution, 5:00 p.m. (New York City time) on the 70th Scheduled Valid Day following the Notice Deadline (provided that such notice pursuant to this clause (x) must be given promptly following the time Counterparty first knows, or reasonably should know, of the occurrence of the event or condition with respect to such financial institution that would give rise to Counterparty’s obligation to deliver the relevant conversion consideration for such Convertible Notes pursuant to Section 4.04(c) of the Indenture) and in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (x), the “Settlement Averaging Period” shall be deemed to be the 60 consecutive Valid Days beginning on, and including, the third Valid Day immediately following the date Dealer receives the related Notice of Exercise, or (y) otherwise, 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (y), the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline; provided, further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above, as well as the information (including with respect to the Specified Cash Amount) and acknowledgements required pursuant to “Settlement Method Election Conditions” below. Notwithstanding Valuation Time: The close of trading of the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially Valuation Time in its reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 2 contracts
Samples: Chart Industries Inc, Chart Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected a Cash Percentage for to pay to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, costs as a result of hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer (or any of its affiliates) in connection with its or their ability to maintain or establish commercially reasonable hedging activities hereunder (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after as set forth in clause (iii) of the Free Convertibility Datedefinition of Settlement Averaging Period below, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than in respect Dealer shall be entitled to rely on the accuracy of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (without any independent investigation, and the related exercise contents of Options) such notice shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, binding on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesCounterparty.
Appears in 2 contracts
Samples: Lci Industries, Lci Industries
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period (the “Notice Exercise Deadline”) for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”); provided that notwithstanding the foregoing, in respect of any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline, and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Letter Agreement (Patrick Industries Inc), Patrick Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order connection with the exercise of any Options relating to exercise any OptionsConvertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such OptionsOptions that are to be exercised; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given by Counterparty after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, (iii) in which event the Relevant Settlement Method for Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with hedge position) as a Conversion Date occurring on or after the Free Convertibility Date, (A) result of its not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately preceding the Expiration Date adjusted delivery obligation described in this proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further, that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) aboveif the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”). Notwithstanding If the foregoing, Relevant Settlement Method for such Options is other than Net Share Settlement in respect the Notice of any Options relating Final Settlement Method, the Notice of Final Settlement Method shall contain a written representation by Counterparty to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City timeDealer that Counterparty is not, on the fifth Scheduled Valid Day following such date of the Notice Deadlineof Final Settlement Method, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, possession of any material non-public information with respect to such exercise of Options, as appropriate to reflect Counterparty or the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesShares.
Appears in 2 contracts
Samples: Letter Agreement (PetIQ, Inc.), PetIQ, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number Number of Relevant Options and the aggregate principal amount of Convertible Notes outstanding on such date immediately prior to such conversion (upon which Dealer shall be entitled to rely on the accuracy of such Optionsamount without any independent investigation), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected a to pay to Holders (as such term is defined in the Indenture) of the Relevant Convertible Notes in cash (the “Cash Percentage for Percentage”); provided that notwithstanding the foregoing, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, such Cash Percentagebut prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline; and provided further that in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than Dealer shall be entitled to rely on the accuracy of any such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. For the avoidance of doubt, if Counterparty fails to give notice as required above when due (such failure to provide notice when due shall exclude, for these purposes, any notices delivered after the Exercise Notice Deadline but prior to 4:00 p.m. (New York City time) on the fifth scheduled Valid Day following the Exercise Notice Deadline) in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M.Options hereunder, New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s obligation to make any payment or delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notessuch exercise shall be permanently extinguished, and late notice shall not cure such failure.
Appears in 2 contracts
Samples: Dropbox, Inc., Dropbox, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice shall be deemed to have been given (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, related exercise of Options hereunder shall be effective) with respect to all Options then outstanding as of 5:00 p.m. (iiiNew York City Time) on the Relevant Settlement Method for such Options, and (iv) Expiration Date as if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect number of any Options relating to Convertible Notes in denominations of USD 1,000 equal to such number of then-outstanding Options were converted with a Conversion Date occurring on or after the Free Convertibility Date; provided further, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Shares or Settlement in Cash (iiieach as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD1,000. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 2 contracts
Samples: Coupa Software Inc, Coupa Software Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer Nomura in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer Nomura shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Supplemental Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Horizon Global Corp, Horizon Global Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “applicable Notice Deadline”) Deadline of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding ; provided, further, that any “Notice of Exercise” or “Notice of Final Settlement Method” delivered to Dealer pursuant to the foregoingBase Call Option Confirmation shall be deemed to be a Notice of Exercise or Notice of Final Settlement Method, other than in respect of any Options relating as the case may be, pursuant to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (this Confirmation and the related exercise terms of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadlineof Exercise or Notice of Final Settlement Method shall apply, in which event the Calculation Agent shall have the right mutatis mutandis, to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinethis Confirmation. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Letter Agreement (Impax Laboratories Inc), Atlas Holdings, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected a Cash Percentage for to pay to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, costs as a result of hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer (or any of its affiliates) in connection with its or their ability to maintain or establish commercially reasonable hedging activities hereunder (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after as set forth in clause (iii) of the Free Convertibility Datedefinition of Settlement Averaging Period below, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.Net Share
Appears in 2 contracts
Samples: Lci Industries, Lci Industries
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Exercisable Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer JPMorgan in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised (the “Notice Deadline”) of (i) the number of such Options, Exercisable Options and (ii) the scheduled first day of settlement date under the Settlement Averaging Period Indenture for the Convertible Notes related to such Exercisable Options (such time, the “Notice Deadline”); provided that, notwithstanding the foregoing, such notice (and the scheduled Settlement Date, (iii) the Relevant Settlement Method for related automatic exercise of such Options) shall be effective if given after the relevant Notice Deadline but prior to 5:00 p.m. New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which case the Calculation Agent shall have the right to adjust the Net Shares to reflect additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by JPMorgan in connection with its hedging activities (ivincluding the unwinding of any hedge position) if Counterparty has elected as a Cash Percentage for result of its not having received such notice prior to the related Convertible Notes, such Cash PercentageNotice Deadline; provided further that in respect of any Exercisable Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Aggregate Conversion Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) abovenumber of such Exercisable Options, and (B) if provided that the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (proviso above relating to the “extension of delivery of the Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on Exercise by the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of Counterparty shall not apply to any Options notice delivered by Counterparty pursuant to this proviso relating to Exercisable Options for Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Aggregate Conversion Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, (iii) in which event the Relevant Settlement Method for Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in good faith and in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with hedge position) as a Conversion Date occurring on or after the Free Convertibility Date, (A) result of its not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately adjusted delivery obligation described in the preceding the Expiration Date proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further, that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (as defined below) the “Exchange Act”), and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Letter Agreement (Varex Imaging Corp), Letter Agreement (Varex Imaging Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must shall notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such Cash Percentageterm is defined in the Indenture) of the related Convertible Notes (the “Specified Dollar Amount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Final Settlement Period Start Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Dollar Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Final Settlement Period Start Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: Letter Agreement (Spectrum Pharmaceuticals Inc), Letter Agreement (Spectrum Pharmaceuticals Inc)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 P.M., (iii) New York City time, on the Relevant Settlement Method for fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notesunwinding of any hedge position), solely resulting from Dealer not having received such Cash Percentagenotice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected or is deemed to have elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise Convertible Notes (the “Specified Cash Amount”). If Counterparty fails to timely provide such Notice of Options) Final Settlement Method, it shall be effective if given after deemed to have provided a Notice of Final Settlement Method indicating that the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on Relevant Settlement Method is Net Share Settlement and that the fifth Scheduled Valid Day following such Notice Deadline, in which event settlement method for the Calculation Agent shall have related Convertible Notes is the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Default Settlement Method (as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinedefined below). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not the Default Settlement Method.
Appears in 2 contracts
Samples: Boingo Wireless Inc, Boingo Wireless Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number Number of Relevant Options and the aggregate principal amount of Convertible Notes outstanding on such date immediately prior to such conversion (upon which Dealer shall be entitled to rely on the accuracy of such Optionsamount without any independent investigation), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a to deliver to Holders (as such term is defined in the Indenture) of the Relevant Convertible Notes (the “Specified Cash Percentage for Amount”); provided that notwithstanding the foregoing, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline (or, in the case of a Settlement Averaging Period specified in the proviso to clause (ii) of the definition thereof relating to conversions following a Notice of Redemption (as defined in the Indenture) with respect to Settlement in Shares or Low Cash Combination Settlement, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but on or prior to the latest date on which a Notice of Redemption may be delivered to holders in respect of the relevant Redemption Date (such notice, a “Late Redemption Notice”), in which event the Calculation Agent, using commercially reasonable discretion, shall have the right to adjust the delivery obligation under this Confirmation in a commercially reasonable manner as appropriate to reflect the reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its (or any of its affiliates’) commercially reasonable hedging activities hereunder (including the unwinding of any commercially reasonable hedge position in a commercially reasonable manner) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished (and in addition to the foregoing, with respect to a Late Redemption Notice, the Calculation Agent shall have the right to adjust the relevant Settlement Averaging Period such that it begins after the date such notice is given); and provided further that in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than Dealer shall be entitled to rely on the accuracy of any such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. For the avoidance of doubt, if Counterparty fails to give notice as required above when due (such failure to provide notice when due shall exclude, for these purposes, any notices delivered after the Exercise Notice Deadline but prior to 4:00 p.m. (New York City time) on the fifth scheduled Valid Day following the Exercise Notice Deadline) in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M.Options hereunder, New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s obligation to make any payment or delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notessuch exercise shall be permanently extinguished, and late notice shall not cure such failure.
Appears in 2 contracts
Samples: Square, Inc., Square, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Exercisable Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Exercisable Options being exercised (the “Notice Deadline”) of (i) the number of such Options, Exercisable Options and (ii) the scheduled first day of settlement date under the Settlement Averaging Period Indenture for the Convertible Notes related to such Exercisable Options (such time, the “Notice Deadline”); provided that, notwithstanding the foregoing, such notice (and the scheduled Settlement Date, (iii) the Relevant Settlement Method for related automatic exercise of such Options) shall be effective if given after the relevant Notice Deadline but prior to 5:00 p.m. New York City time, on the fifth Exchange Business Day following the Notice Deadline, in which case the Calculation Agent shall have the right to adjust the Net Shares to reflect additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its hedging activities (ivincluding the unwinding of any hedge position) if Counterparty has elected as a Cash Percentage for result of its not having received such notice prior to the related Convertible Notes, such Cash PercentageNotice Deadline; provided further that in respect of any Exercisable Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Aggregate Conversion Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) abovenumber of such Exercisable Options, and (B) if provided that the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (proviso above relating to the “extension of delivery of the Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on Exercise by the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of Counterparty shall not apply to any Options notice delivered by Counterparty pursuant to this proviso relating to Exercisable Options for Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Aggregate Conversion Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes, such Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Exercise Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time), on the fifth Scheduled Valid Day following such the 10 Include in the Additional Call Option Confirmation. 11 Include in the Additional Call Option Confirmation. Exercise Notice Deadline, in which event the Calculation Agent Agent, using commercially reasonable discretion, shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket commercially reasonable costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and commercially reasonable and documented out-of-pocket expenses actually incurred by Dealer in connection with its (or any of its affiliates in connection with its affiliates’) commercially reasonable hedging activities hereunder (including the unwinding of any commercially reasonable hedge positionposition in connection herewith in a commercially reasonable manner) as a result of it Dealer not having received such notice prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 2 contracts
Samples: MARRIOTT VACATIONS WORLDWIDE Corp, MARRIOTT VACATIONS WORLDWIDE Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Relevant Convertible Notes, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by mail with a copy sent by email in accordance with Section 7 below) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth 105th Scheduled Valid Day following immediately preceding the Expiration Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the settlement method for the related Relevant Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Relevant Convertible Notes (the “Specified Cash Amount”) and if Counterparty fails to timely provide such Notice Deadlineof Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Relevant Convertible Notes is a combination of cash and shares with a Specified Cash Amount of USD 1,000. Counterparty acknowledges and agrees that it shall settle any Relevant Convertible Notes in which event the Calculation Agent shall same manner as provided in the Notice of Final Settlement Method it provides or is deemed to have the right to adjust the Dealer’s delivery obligation provided hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000 that applies pursuant to Section 14.02(a)(iii) of the Indenture.
Appears in 2 contracts
Samples: Vonage Holdings Corp, Vonage Holdings Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic ExerciseExercisable Options” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must shall notify Dealer in writing (whichprior to 5:00 p.m., for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) , on the day that is at least two Scheduled Valid Day immediately preceding Trading Days prior to the scheduled first day of the Settlement Averaging applicable Conversion Period for (as defined below) in respect of the Options being exercised (or, in the case of an Early Conversion prior to the Conversion Period, prior to 5:00 p.m., New York City time, on the day that is at least two Scheduled Trading Days’ prior to the first day of the applicable “Calculation Period” (as defined in the Indenture)) (the “Exercise Notice Deadline”) of (i) the number of such OptionsOptions (including, if applicable, whether all or any portion of the Convertible Notes relating to such Options are Convertible Notes as to which additional Shares would be added to the “Conversion Ratio” (as defined in the Indenture) pursuant to Section 12.03 of the Indenture (the “Make-Whole Convertible Notes”)) and (ii) the scheduled first day of the Settlement Averaging applicable Conversion Period and (or, in the case of an Early Conversion, the scheduled Settlement Date, first day of the applicable “Calculation Period” (iii) as defined in the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash PercentageIndenture)); provided that (I) in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility DateDate (other than Make-Whole Convertible Notes), (A) such notice may be given on or prior to the Scheduled Valid Trading Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (BII) if the Relevant Settlement Method for such with respect to (a) any Exercisable Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on exercised prior to the Free Convertibility Date specifying the information required in clauses or (iiib) and (iv) above. Notwithstanding the foregoing, other than in respect of any Exercisable Options relating to Make-Whole Convertible Notes with a Conversion Date occurring exercised on or after the Free Convertibility DateDate (any exercise pursuant to clause (a) or (b), such an “Early Conversion”), an Additional Termination Event shall be deemed to occur with respect to a number of Options equal to the number of Exercisable Options so exercised, as provided in clause (D) under “Additional Termination Events” in paragraph 5(b) below. Notwithstanding the foregoing, notice in respect of any exercise of Options hereunder (and the related exercise of Options) shall be effective if given after 5:00 p.m., New York City time, on the applicable Exercise Notice Deadline specified above Deadline, but prior to 5:00 P.M.p.m., New York City time, on the fifth Scheduled Valid Trading Day following such the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Cash Settlement Amount as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities lawsDeadline and, and in particular Section 9 and Section 10(b) of if appropriate, to delay the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesSettlement Date.
Appears in 2 contracts
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” aboveabove (but subject to Section 9(h)(ii)), in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, Options (and the number of $1,000 principal amount of Convertible Notes being converted on such Conversion Date) and (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for number of such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (and the “Notice number of Final Settlement Method”) $1,000 19 Inserted in respect the Additional Call Option Confirmation only. principal amount of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date). Notwithstanding the foregoing, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline deadline specified above (the “Exercise Notice Deadline”), but (x) in the case of any Options relating to Convertible Notes (A) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.13 of the Indenture in respect of a Conversion Date occurring prior to the Free Convertibility Date, and (B) that have been accepted by the designated financial institution pursuant to Section 14.13 of the Indenture, prior to 5:00 P.M.PM, New York City time, on the fifth Scheduled Valid Exchange Business Day following the time Counterparty first knows, or reasonably should know, of the occurrence of an event or condition with respect to such designated financial institution that would give rise to Counterparty’s obligation to pay or deliver, as the case may be, the relevant conversion consideration for such Convertible Notes pursuant to the third sentence of the second paragraph of Section 14.13 of the Indenture (in which case the Settlement Averaging Period shall be determined as if the Conversion Date occurred on the “Scheduled Trading Day” (as defined in the Indenture) immediately following the date Dealer receives such notice), or (y) otherwise, prior to 5:00 PM, New York City time, on the fifth Exchange Business Day following the applicable Exercise Notice Deadline, and in which event either of the cases described in clause (x) or (y) of this sentence, the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Delivery Obligation as appropriate to reflect the commercially reasonable additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and commercially reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the applicable Exercise Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 1 contract
Samples: Rovi Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “applicable Notice Deadline”) Deadline of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 14.03 of the Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date applicable Notice Deadline and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Integrated Device Technology Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify (the information required in clause (i“Notice Deadline”) above, and (B) specifying the number of such Options; provided that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.
Appears in 1 contract
Samples: Purchase Agreement (KAMAN Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes (the “Specified Cash Amount”); provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its (or any of its affiliates’) hedging activities 7 Include for Additional Call Option Confirmation only. hereunder (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than Dealer shall be entitled to rely on the accuracy of any such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. For the avoidance of doubt, if Counterparty fails to give notice as required above when due in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M.Options hereunder, New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s obligation to make any payment or delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notessuch exercise shall be permanently extinguished, and late notice shall not cure such failure.
Appears in 1 contract
Samples: Nutanix, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number Number of Relevant Options and the aggregate principal 14 Include for Additional Call Option Confirmation only. amount of Convertible Notes outstanding on such date immediately prior to such conversion (upon which Dealer shall be entitled to rely on the accuracy of such Optionsamount without any independent investigation), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) of the Relevant Convertible Notes in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, in respect of any Options relating to Relevant Convertible Notes with a Cash Percentage for Conversion Date occurring prior to the Free Convertibility Date, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions) as a result of Dealer not having received such Cash Percentagenotice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and and, if applicable, clause (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. The parties hereto agree and acknowledge that if the Trustee or any other agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing on behalf of Counterparty provides notice to Dealer as provided for in the second immediately preceding sentence, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Palo Alto Networks Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount 9 Insert in the Additional Call Option Confirmation only. of Convertible Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method settlement method for such Options, the related Convertible Notes and (iv) if Counterparty has elected a Cash Percentage Settlement Method for the related Convertible Notessuch Options other than Net Share Settlement will apply, such Cash Percentagenotice shall also include information, representations, acknowledgments and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Counterparty shall deliver to Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding ; provided further that, notwithstanding the foregoing, other than such notice (and the related exercise of Options) in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after prior to the Free Convertibility Date, such notice (and the related exercise of Options) Date shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, amount of cash payable and/or the number of Shares deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 1 contract
Samples: Red Hat Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise After Free Convertibility Date” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 P.M., (iii) New York City time, on the Relevant Settlement Method for fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (ivincluding the unwinding of any commercially reasonable hedge position) if Counterparty has elected as a Cash Percentage for result of its not having received such notice prior to such notice deadline (it being understood that the related Convertible Notes, such Cash Percentageadjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Shares or Settlement in Cash (iiieach as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 1 contract
Samples: Health Catalyst, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (iiand the related exercise of Options hereunder) shall be effective if given after the scheduled first day of applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Averaging Period and Date in a commercially reasonable manner, with respect to the scheduled Settlement Date, (iii) the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (including, but not limited to, losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datehedge position), (A) solely resulting from Dealer not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately adjusted delivery obligation described in the preceding the Expiration Date proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on or after is not Settlement in Cash (as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Purchase Agreement (Bread Financial Holdings, Inc.)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that, notwithstanding the foregoing, any Notice of Exercise and the related automatic exercise of the related Options shall be effective if given after the Notice Deadline, as the case may be, but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following such Notice Deadline, except that with respect to any Options in respect of which such Notice of Exercise is delivered after such Notice Deadline pursuant to this proviso, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares deliverable and/or amount of cash payable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of Dealer not having received such Notice of Exercise, on or prior to such Notice Deadline; provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Okta, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected a Cash Percentage for to pay to Holders (as such term is defined in the related Convertible Notes, such Indenture) in cash (the “Specified Cash Percentage”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and and, if applicable, clause (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Citrix Systems Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise After Free Convertibility Date” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 P.M., (iii) New York City time, on the Relevant Settlement Method for fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (ivincluding the unwinding of any hedge position) if Counterparty has elected as a Cash Percentage for result of its not having received such notice prior to such notice deadline (it being understood that the related Convertible Notes, such Cash Percentageadjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Shares or Settlement in Cash (iiieach as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000. [Any “Notice of Exercise” and “Notice of Final Settlement Method” delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be a Notice of Exercise and a Notice of Final Settlement Method (as the case may be) pursuant to this Confirmation and the terms of such Notice of Exercise and Notice of Final Settlement Method (as the case may be) shall apply, mutatis mutandis, to this Confirmation.] Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 1 contract
Samples: Slack Technologies, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized of Counterparty previously identified as such to Dealer by the CounterpartyCounterparty in writing) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”); provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses assuming that Dealer maintains a commercially reasonable hedge position) and reasonable expenses incurred by Dealer in connection with its (or any of its affiliates’) commercially reasonable hedging activities related to this Transaction (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) provides such notice to Dealer, other than in respect Dealer shall be entitled to rely on the accuracy of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (without any independent investigation, and the related exercise contents of Options) such notice shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, binding on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineCounterparty. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. 12 Include for Additional Call Option Confirmation only.
Appears in 1 contract
Samples: Granite Construction Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number Number of Relevant Options and the aggregate principal amount of Convertible Notes outstanding on such date immediately prior to such conversion (upon which Dealer shall be entitled to rely on the accuracy of such Optionsamount without any independent investigation), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a to deliver to Holders (as such term is defined in the Indenture) of the Relevant Convertible Notes (the “Specified Cash Percentage for Amount”); provided that notwithstanding the foregoing, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and reasonable expenses incurred by Dealer in connection with its (or any of its affiliates’) hedging activities hereunder (including the unwinding of any hedge position) as a result of Dealer not having received such Cash Percentagenotice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than Dealer shall be entitled to rely on the accuracy of any such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. For the avoidance of doubt, if Counterparty fails to give notice as required above when due in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) Options hereunder, Xxxxxx’s obligation to make any payment or delivery in respect of such exercise shall be effective if given after permanently extinguished, and late notice shall not cure such failure. Valuation Time: At the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, close of trading of the regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates Valuation Time in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 1 contract
Samples: Twitter, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of $1,000 principal amount of Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period (the “SAP Notice Deadline”) and the scheduled Settlement Date, Date and (iii) the Relevant if Counterparty elects a Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible NotesOptions other than Net Share Settlement, such Cash Percentagenotice shall also include information, representations, acknowledgments and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date (such time, together with the SAP Notice Deadline, the “Notice Deadline”) and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding ; provided further that, notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, amount of cash payable and/or the number of Shares deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 1 contract
Samples: Akamai Technologies Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Daterelated exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, (iii) in which event the Relevant Settlement Method for Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ivlimited to losses as a result of hedging mismatches and market losses) if Counterparty has elected a Cash Percentage for and expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with hedge position) as a Conversion Date occurring on or after the Free Convertibility Date, (A) result of its not having received such notice may be given on or prior to such notice deadline (it being understood that the Scheduled Valid Day immediately adjusted delivery obligation described in the preceding the Expiration Date proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further, that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise of Options) shall be effective if given after Convertible Notes (the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Securities Exchange Act of 1934, as amended (as defined belowthe “Exchange Act”) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Trading Day immediately following the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding ; provided further that notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after 5:00 p.m. (New York City time) on the applicable Exercise Notice Deadline specified above Deadline, but prior to 5:00 P.M.PM, New York City time, on the fifth Scheduled Valid Day following such the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Exercise Notice DeadlineDeadline and, if appropriate, to delay the Settlement Date. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method that is not Net Share Settlement with respect to the Convertible Notes.
Appears in 1 contract
Samples: Letter Agreement (Yahoo Inc)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such OptionsOptions that are to be exercised; provided that, notwithstanding the foregoing, such notice (iiand the related exercise of Options hereunder) shall be effective if given after the scheduled first day of applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Averaging Period and Date in a commercially reasonable manner, with respect to the scheduled Settlement Date, (iii) the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notesunwinding of any hedge position), solely resulting from Dealer not having received such Cash Percentagenotice prior to such notice deadline (it being understood that the adjusted delivery obligation described in this proviso can never be less than zero and can never require any payment by Counterparty); provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to settlement method for the related Convertible Notes with a Conversion Date occurring on is not Settlement in Shares or after Settlement in Cash (each as defined below), the Free Convertibility Date, fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such notice (and term is defined in the Indenture) of the related exercise Convertible Notes (the “Specified Cash Amount”). If Counterparty fails to 13 Include for Additional Call Option Confirmation only. timely provide such Notice of Options) Final Settlement Method, it shall be effective if given after deemed to have provided a Notice of Final Settlement Method indicating that the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on Relevant Settlement Method is Net Share Settlement and that the fifth Scheduled Valid Day following such Notice Deadline, in which event settlement method for the Calculation Agent shall have related Convertible Notes is the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Default Settlement Method (as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinedefined below). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not the Default Settlement Method.
Appears in 1 contract
Samples: Groupon, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions and, if applicable, whether such exercise relates to the conversion of Convertible Notes in connection with which holders thereof are entitled to receive additional Shares and/or cash pursuant to the adjustments to the Conversion Rate set forth in Section [5.07] of the Indenture, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility 105th Scheduled Valid Day preceding the Expiration Date and ending on and including the second Scheduled Valid Day immediately preceding the Expiration Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. 9:00 a.m. (New York City time) on the Free Convertibility 105th Scheduled Valid Day preceding the Expiration Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act US-DOCS\102978043.13 (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 1 contract
Samples: Perficient Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number Number of Relevant Options and the aggregate principal amount of Convertible Notes outstanding on such date 14 Include for Additional Call Option Confirmation only. immediately prior to such conversion (upon which Dealer shall be entitled to rely on the accuracy of such Optionsamount without any independent investigation), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) of the Relevant Convertible Notes in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, in respect of any Options relating to Relevant Convertible Notes with a Cash Percentage for Conversion Date occurring prior to the Free Convertibility Date, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions in a commercially reasonable manner) as a result of Dealer not having received such Cash Percentagenotice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Relevant Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and and, if applicable, clause (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. The parties hereto agree and acknowledge that if the Trustee or any other agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing on behalf of Counterparty provides notice to Dealer as provided for in the second immediately preceding sentence, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Palo Alto Networks Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions (and the number of USD 1,000 principal amount of Notes being converted on such Conversion Date), (ii) the scheduled first day of the Settlement Averaging Period (the “SAP Notice Deadline”) and the scheduled Settlement Date, Date and (iii) the Relevant if Counterparty elects a Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible NotesOptions other than Net Share Settlement, such Cash Percentagenotice shall also include information, representations, acknowledgments and agreements required pursuant to “Settlement Method Election Conditions” below; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date (such time, together with the SAP Notice Deadline, the “Notice Deadline”) and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and (iv) above. Notwithstanding ; provided further that, notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time, ) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, amount of cash payable and/or the number of Shares deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice on or prior to such the Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) Valuation Time: The close of trading of the Exchange Act (as defined below) and regular trading session on the rules and regulations thereunderExchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in respect of any election of a settlement method with respect to the Convertible Notesits reasonable discretion.
Appears in 1 contract
Samples: Akamai Technologies Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for before the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “applicable Notice Deadline”) Deadline of (i) the number aggregate principal amount of Convertible Notes as to which a Conversion Date has occurred in respect of such OptionsNotice Deadline (including, if applicable, whether all or any portion of such Convertible Notes are Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture and/or are Convertible Notes called for redemption or deemed called for redemption), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Cash (as defined below), the fixed percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes in cash (the “Cash Percentage”); provided that in respect of (1) any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date (other than those as described in the immediately succeeding clause (2)), and (2) any Options relating to Convertible Notes called for redemption or deemed called for redemption pursuant to Section 14.01(b)(v) of the Indenture with a Conversion Date occurring on or after the date Counterparty issues a Notice of Redemption with respect to such Convertible Notes in accordance with Section 16.02 of the Indenture and prior to the close of business on the Scheduled Valid Day immediately preceding the related Redemption Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) aboveabove (and, in the case of clause (2) in this proviso only, the number of Convertible Notes as to which Counterparty issued a Notice of Redemption), and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately succeeding the Free Convertibility Date Date, or concurrently with the delivery of the Notice of Redemption to Holders of the Convertible Notes, as the case may be, specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding [; provided further that any “Notice of Exercise” or “Notice of Final Settlement Method” delivered to Dealer pursuant to the foregoingBase Call Option Confirmation shall be deemed to be a Notice of Exercise or Notice of Final Settlement Method, other than in respect of any Options relating as the case may be, pursuant to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datethis Confirmation, such notice (and the related exercise terms of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadlineof Exercise or Notice of Final Settlement Method shall apply, in which event the Calculation Agent shall have the right mutatis mutandis, to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinethis Confirmation]14. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled 11 Include for Additional Call Option Confirmation only. Valid Day immediately preceding following the scheduled first day of the Settlement Averaging Period relevant Conversion Date for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Net Share Settlement (as defined below), the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes in cash (the “Cash Percentage”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date (other than any such Convertible Notes with a Conversion Date occurring on or after the date that Counterparty issues a “Notice of Redemption” (as defined in the Indenture) in accordance with Section 16.02 of the Indenture and prior to the close of business on the second Scheduled Valid Day immediately preceding the related “Redemption Date” (as defined in the Indenture), in respect of which, for the avoidance of doubt, Counterparty must provide notice to Dealer in writing by the Notice Deadline of the information set out in (i) through (iv) above), (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, in respect of any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in such event, the Calculation Agent shall have the right to (i) postpone the Settlement Date and/or (ii) adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 1 contract
Samples: On Semiconductor Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period (the “Exercise Notice Deadline”) for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, in respect of any Options relating to Convertible Notes with a Cash Percentage for Conversion Date occurring prior to the Free Convertibility Date, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions) as a result of Dealer not having received such Cash Percentagenotice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any 12 Include for Additional Call Option Confirmation only. payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and and, if applicable, clause (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. The parties hereto agree and acknowledge that if the Trustee or any other agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing on behalf of Counterparty provides notice to Dealer as provided for in the second immediately preceding sentence, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Palo Alto Networks Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected a Cash Percentage for to deliver to Holders (as such term is defined in the Indenture) of the related Convertible NotesNotes (the 15 Include for Additional Call Option Confirmation only. “Specified Cash Amount”); provided that notwithstanding the foregoing, such Cash Percentagenotice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer (or any of its affiliates) in connection with its or their ability to maintain or establish commercially reasonable hedging activities hereunder (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding If the foregoingTrustee (or any other such agent) on behalf of Counterparty provides such notice to Dealer, other than in respect Dealer shall be entitled to rely on the accuracy of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (without any independent investigation, and the related exercise contents of Options) such notice shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, binding on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesCounterparty.
Appears in 1 contract
Samples: Ionis Pharmaceuticals Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions Definitions, Dealer shall have no obligation to make any payment or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that delivery in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but Options hereunder unless Counterparty notifies Dealer in writing prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Exercise Notice Deadline, Deadline in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to of such exercise of Options(i) the number of Options being exercised on the relevant Exercise Date, (ii) the scheduled settlement date under the Indenture for the Relevant Convertible Securities converted on the Conversion Date corresponding to such Exercise Date, (iii) whether such Relevant Convertible Securities will be settled by Counterparty by delivery of cash, Shares or a combination of cash and Shares and, if such a combination, the “Specified Dollar Amount” (as appropriate to reflect defined in the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market lossesIndenture) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or (iv) if applicable, the first “Scheduled Trading Day” of the “Observation Period” (each as defined in the Indenture); provided that in the case of any exercise of its affiliates Options hereunder in connection with its commercially reasonable hedging activities (including the unwinding conversion of any commercially reasonable hedge position) as a result Relevant Convertible Securities on any Conversion Date occurring during the Final Conversion Period, the contents of it not having received such notice prior shall be solely as set forth in clause (i) above, and Counterparty may provide Dealer with a single notice is respect of all Options exercised during such period; provided, further, that any “Notice of Exercise” delivered to Dealer pursuant to the Base Convertible Bond Hedge Transaction Confirmation shall be deemed to be a Notice of Exercise pursuant to this Confirmation and the terms of such Notice Deadlineof Exercise shall apply, mutatis mutandis, to this Confirmation. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesSecurities. For the avoidance of doubt, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder, Dealer’s obligation to make any payment or delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure; provided that notwithstanding the foregoing, such notice (and the related exercise of Options) in connection with any conversion of Relevant Convertible Securities prior to the Final Conversion Period shall be effective if given after the Exercise Notice Deadline, but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust, in a commercially reasonable manner, the Delivery Obligation as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline.
Appears in 1 contract
Samples: Supernus Pharmaceuticals Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date”, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (iiand the related exercise of Options hereunder) shall be effective if given after the scheduled first day of applicable notice deadline specified above but prior to 5:00 p.m. (New York City time), on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Averaging Period and Date in a commercially reasonable manner, with respect to the scheduled Settlement Date, (iii) the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (including, but not limited to, losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notes, such Cash Percentage; provided that in respect unwinding of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datehedge position), (A) solely resulting from Dealer not having received such notice may be given on or prior to such notice deadline (it being 13 Include for Additional Call Option Confirmation only. understood that the Scheduled Valid Day immediately adjusted delivery obligation described in the preceding the Expiration Date proviso can never be less than zero and need only specify the information required in clause (i) abovecan never require any payment by Counterparty); provided, and (B) further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the Relevant Settlement Method for such Options is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in clauses excess of the principal amount thereof that Counterparty has elected to pay to “Holders” (iiias such term is defined in the Indenture) of the related Convertible Notes in cash (the “Cash Percentage”) and (iv) above. Notwithstanding the foregoingif Counterparty fails to timely provide such Notice of Final Settlement Method, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) it shall be effective if given after deemed to have provided a Notice of Final Settlement Method indicating that the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineRelevant Settlement Method is Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement.
Appears in 1 contract
Samples: Shockwave Medical, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility 55th Scheduled Valid Day preceding the Expiration Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify (the information required in clause (i“Notice Deadline”) above, and (B) of the number of such Options; provided that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. 9:00 a.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth 55th Scheduled Valid Day following preceding the Expiration Date specifying (1) the Relevant Settlement Method for such Notice DeadlineOptions and (2) if the settlement method for the related Convertible Notes is not Settlement in Cash (as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in which event the Calculation Agent shall have Indenture) of the right to adjust related Convertible Notes (the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline“Specified Cash Amount”). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 1 contract
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise After Free Convertibility Date” above, in order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) 14 Include for Additional Call Option Confirmation only. on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and need only specify the information required related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in clause which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (ilimited to losses as a result of hedging mismatches and market losses) aboveand expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge position) as a result of its not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further, and (B) that if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Counterparty shall provide Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the earlier of (i) the Free Convertibility Date and (ii) the Scheduled Trading Day immediately preceding the first day of the applicable Settlement Averaging Period specifying (1) the information required Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in clauses Shares or Settlement in Cash (iiieach as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount”) and (iv) above. Notwithstanding if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the foregoing, other than in respect of any Options relating to Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is a combination of cash and shares with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Specified Cash Amount of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineUSD 1,000. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its commercially reasonable discretion.
Appears in 1 contract
Samples: BridgeBio Pharma, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and need only specify the information required related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, in clause which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder in good faith and in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs and losses (ilimited to losses as a result of hedging mismatches and market losses) aboveand expenses incurred by Dealer or any of its affiliates in connection with its hedging activities with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge position) as a result of its not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require 17 Include for Additional Call Option Confirmation only. any payment by Counterparty); provided, and (B) further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required Relevant Settlement Method for such Options, and, (2) if the Relevant Settlement Method for such Options is Combination Settlement, the Cash Percentage (as such term is defined in clauses the Indenture) (iiithe “Cash Percentage”) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineConvertible Notes. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Verint Systems Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Exchangeable Notes with an Exchange Date occurring on or after the Free Exchangeability Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Exchangeable Notes before 5:00 p.m. (New York City time) on the Free Convertibility Exchangeability Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) above. Notwithstanding if the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and settlement method for the related exercise Exchangeable Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of Optionscash per Exchangeable Note that Counterparty has elected to pay to “Holders” (as such term is defined in the Indenture) of the related Exchangeable Notes (the “Specified Cash Amount”); provided, further that the Notice of Final Settlement 14 Insert for Additional Call Option Confirmation only. 15 Insert for Additional Call Option Confirmation only. Method shall be effective only if given after accompanied by a certification to the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Optionseffect that, as appropriate of the date of such notice, the representation set forth in Section 8(g) is true and correct as to reflect Parent and the additional actual out-of-pocket costs (includingCounterparty Group Members. Notwithstanding anything to the contrary herein, but if Counterparty does not limited totimely deliver the Notice of Final Settlement Method, commercially reasonable losses actually incurred as a result then the Notice of hedging mismatches Final Settlement Method shall be deemed timely given and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior Relevant Settlement Method specified therein shall be deemed to such Notice Deadlinebe Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election (or any deemed election) of a settlement method with respect to the Convertible Exchangeable Notes.
Appears in 1 contract
Samples: Hannon Armstrong Sustainable Infrastructure Capital, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in 16 Include cross-reference to section(s) of the Supplemental Indenture setting forth the requirements for conversion of the Convertible Notes. 17 Include cross-reference to section of the Supplemental Indenture containing provisions for exchange in lieu of conversion. 18 Include for Additional Call Option Confirmation only. order to exercise any OptionsOptions relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (iiand the related exercise of Options hereunder) shall be effective if given after the scheduled first day of applicable notice deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Averaging Period and Date in a commercially reasonable manner, with respect to the scheduled Settlement Date, (iii) the Relevant Settlement Method for exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (limited to losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (iv) if Counterparty has elected a Cash Percentage for including the related Convertible Notesunwinding of any hedge position), solely resulting from Dealer not having received such Cash Percentagenotice prior to such notice deadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty); provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by email) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the settlement method for the related Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Supplemental Indenture) of the related Convertible Notes (the “Specified Cash Amount”). If Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Convertible Notes is the Default Settlement Method (as defined below). If Counterparty elects a Relevant Settlement Method other than Net Share Settlement in the Notice of Final Settlement Method, the Notice of Final Settlement Method shall contain a written representation by Counterparty to Dealer that (i) Counterparty is not, on the date of the Notice of Final Settlement Method, in possession of any material non-public information required with respect to Counterparty or the Shares or (ii) such election has been made pursuant to a plan in clauses compliance with the requirements of paragraphs (iiic)(1)(i)(A) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(bB) of rule 10b5-1 under the Exchange Act (as defined below“Rule 10b5-1”) and the rules and regulations thereunder, entered into by Counterparty at a time when Counterparty was not in respect possession of any election of a settlement method material non-public information with respect to Counterparty or the Convertible NotesShares.
Appears in 1 contract
Samples: RealPage, Inc.
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding following the scheduled first day of the Settlement Averaging Period relevant Conversion Date for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) 11 Include for Additional Call Option Confirmation only. the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Cash (as defined below), the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes in cash (the “Cash Percentage”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date (other than any such Convertible Notes with a Conversion Date occurring on or after the date that Counterparty issues a “Notice of Redemption” (as defined in the Indenture) in accordance with Section 16.02 of the Indenture and prior to the close of business on the second Scheduled Valid Day immediately preceding the related “Redemption Date” (as defined in the Indenture), in respect of which, for the avoidance of doubt, Counterparty must provide notice to Dealer in writing by the Notice Deadline of the information set out in (i) through (iv) above), (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, in respect of any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in such event, the Calculation Agent shall have the right to (i) postpone the Settlement Date and/or (ii) adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 1 contract
Samples: On Semiconductor Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions and, if applicable, whether such exercise relates to the conversion of Convertible Notes in connection with which holders thereof are entitled to receive additional Shares and/or cash pursuant to the adjustments to the Conversion Rate set forth in Section 5.07 of the Indenture, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility 85th Scheduled Valid Day preceding the Expiration Date and ending on and including the second Scheduled Valid Day immediately preceding the Expiration Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. 9:00 a.m. (New York City time) on the Free Convertibility 85th Scheduled Valid Day preceding the Expiration Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. Notwithstanding anything to the contrary herein or in the Equity Definitions, any Notice of Exercise and the related exercise of the related Options shall be effective if given after the Notice Deadline but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this paragraph, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline.
Appears in 1 contract
Samples: Perficient Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (ANew York City time) such notice (which, for the avoidance of doubt, may be given by email) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify 13 Insert for Additional Call Option Confirmation only. 14 Insert for Additional Call Option Confirmation only. specifying the information required in clause (i) above, and (B) number of such Options; provided that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the information required in clauses (iii) Relevant Settlement Method for such Options, and (iv2) aboveif the Relevant Settlement Method for such Options is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes in cash pursuant to Section 14.02(a) of the Indenture (the “Cash Percentage”). Notwithstanding anything to the foregoingcontrary herein, other than in respect if Counterparty does not timely deliver the Notice of any Options relating to Convertible Notes with a Conversion Date occurring on or after Final Settlement Method, then the Free Convertibility Date, such notice (Notice of Final Settlement Method shall be deemed timely given and the related exercise of Options) Relevant Settlement Method specified therein shall be effective if given after the applicable Notice Deadline specified above but prior deemed to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadlinebe Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election (or any deemed election) of a settlement method that is not Net Share Settlement with respect to the Convertible Notes.
Appears in 1 contract
Samples: Western Digital Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period (the “Exercise Notice Deadline”) for the Options being exercised (the “Notice Deadline”) of (i) the number aggregate principal amount of Convertible Notes as to which a Conversion Date has occurred in respect of such OptionsExercise Notice Deadline (including, if applicable, whether all or any portion of such Convertible Notes (x) are Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture and/or (y) have a Conversion Date occurring on or after the date that Counterparty issues a “Redemption Notice” (as defined in the Indenture) and prior to the close of business on the Scheduled Valid Day immediately preceding the related “Redemption Date” (as defined in the Indenture) (each such conversion referred to in this clause (y), a “Redemption Conversion”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method for such Options is not Net Share Settlement (as defined below), the fixed percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected a Cash Percentage to deliver to 13 Include for Additional Call Option Confirmation only. Holders (as such term is defined in the Indenture) of the related Convertible Notes, such Notes in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, in respect of any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions) as a result of Dealer not having received such notice on or prior to the Exercise Notice Deadline, and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that (1) in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility DateDate (other than any Redemption Conversion), (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if unless the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing; and (2) in connection with any Redemption Conversion, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring (A) such notice may be given on or after prior to the Free Convertibility Dateopen of business on the Redemption Date and need only specify the information required in clause (i) above, such and (B) Dealer shall have received a separate notice (and the related exercise “Notice of Options) shall be effective if given after the applicable Notice Deadline specified above but Redemption Settlement”), prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealerof Counterparty’s delivery obligation hereunderof the related “Redemption Notice” (as defined in the Indenture) pursuant to the terms of the Indenture, together with respect to such exercise of Optionsthe information required in clauses (ii), as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market lossesiii) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge positioniv) as a result of it not having received such notice prior to such Notice Deadlineabove. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a Cash Percentage in connection with the settlement method with respect to of the conversion of the related Convertible Notes. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Advanced Energy Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” aboveDefinitions, in order to exercise any Exercisable Options, Counterparty (or the Trustee trustee under the Indenture or any other agent authorized by (the Counterparty“Trustee”) on behalf of Counterparty must notify Dealer in writing (whichprior to 5:00 P.M., for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) , on the Scheduled Valid Trading Day immediately preceding prior to the scheduled first day of the Settlement Averaging Observation Period for the Relevant Exchangeable Notes in respect of which the Exercisable Options are being exercised (the “Notice Deadline”) of (i) the number of such Exercisable Options, (ii) the scheduled first day of the Settlement Averaging Observation Period and the scheduled expected Settlement Date, and (iii) the method by which Counterparty is satisfying its obligation to exchange the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Exchangeable Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Datethat, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Automatic Exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., PM (New York City time, ) on the fifth Scheduled Valid Exchange Business Day following of such Notice Deadline, “Observation Period,” in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, Delivery Obligation as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it its not having received such notice prior to such the Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) unless Counterparty’s chief financial officer received a phone call from an officer of the Dealer inquiring about such notice between 9:00 AM and 5:00 PM (New York City time) on the second Exchange Act (as defined below) and Business Day preceding the rules and regulations thereunderbeginning of the Observation Period, in which case this proviso shall not apply; provided further that in respect of any Exercisable Options relating to Exchangeable Notes tendered for exchange following the election by Counterparty of December 15, 2011 as a settlement method with respect redemption date for the Exchangeable Notes pursuant to the Convertible Notesterms of the Indenture, such notice may be given on or prior to the second Scheduled Trading Day immediately preceding the Expiration Date and need only specify the number of such Exercisable Options. Dealer’s Telephone Number and Telex and/or Facsimile Number and Contact Details for purpose of Giving Notice of Exercise: To: Bear, Sxxxxxx & Co. Inc. Attn: Pxxxxxx Xxxxxxx Telephone: (000)000-0000 Facsimile: (000) 000-0000 Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 1 contract
Samples: Superior Energy Services Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Exercise Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and and, if applicable, (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Exercise Notice Deadline specified above but prior to 5:00 P.M., p.m. (New York City time), on the fifth Scheduled Valid Day following such the 11 Include for Additional Call Option Confirmation only. Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, number of Shares and/or amount of cash deliverable by Dealer with respect to such exercise of Options, Options in a commercially reasonable manner as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its effect on Dealer’s commercially reasonable hedging and hedge unwind activities for the Transaction (including the unwinding of any commercially reasonable hedge position) as a result of it Dealer not having received such notice prior to such the Exercise Notice DeadlineDeadline (it being understood that the adjusted delivery obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty). Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Insight Enterprises Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such OptionsOptions and, if applicable, whether such exercise relates to the conversion of Convertible Notes in connection with which “Holders” (as such term is defined in the Indenture) thereof are entitled to receive additional shares and/or cash pursuant to the adjustments to the Conversion Rate set forth in Section 14.03 of the Indenture, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), such the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that, notwithstanding the foregoing, any Notice of Exercise and the related automatic exercise of the related Options shall be effective if given after the Notice Deadline, as the case may be, but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following such Notice Deadline, except that with respect to any Options in respect of which such Notice of Exercise is delivered after such Notice Deadline pursuant to this proviso, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares deliverable and/or amount of cash payable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the economic effect of such late notice on Dealer’s commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position in a commercially reasonable manner) as a result of Dealer not having received such Notice of Exercise, on or prior to such Notice Deadline; provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes.
Appears in 1 contract
Samples: Luminex Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash PercentageAmount”); provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date (the “Final Notice Deadline”) and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes; provided further that, notwithstanding the foregoing, any Notice of Exercise or Notice of Final Settlement Method and the related automatic exercise of the related Options shall be effective if given after the Notice Deadline or the Final Notice Deadline, as the case may be, but prior to 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following such Notice Deadline or such Final Notice Deadline, as applicable, except that with respect to any Options in respect of which such Notice of Exercise or such Notice of Final Settlement Method, as the case may be, is delivered after such Notice Deadline or such Final Notice Deadline, as applicable, pursuant to this proviso, the Calculation Agent shall have the right to (i) postpone the Settlement Date and (ii) adjust the number of Shares deliverable and/or amount of cash payable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities as a result of Dealer not having received such Notice of Exercise or such Notice of Final Settlement Method, as the case may be, on or prior to such Notice Deadline or such Final Notice Deadline, as applicable.
Appears in 1 contract
Samples: Hubspot Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions relating to Relevant Convertible Notes, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “Notice Deadline”) of (i) Expiration Date specifying the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage for the related Convertible Notes, such Cash Percentage; provided that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Net Share Settlement and the Specified Cash Amount (as defined below) is not USD 1,000, (y) Cash Settlement or (yz) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) (which, for the avoidance of doubt, may be by mail with a copy sent by email in accordance with Section 7 below) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth 105th Scheduled Valid Day following immediately preceding the Expiration Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the settlement method for the related Relevant Convertible Notes is not Settlement in Shares or Settlement in Cash (each as defined below), the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to Holders (as such term is defined in the Indenture) of the related Relevant Convertible Notes (the “Specified Cash Amount”) and if Counterparty fails to timely provide such Notice Deadlineof Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement and that the settlement method for the related Relevant Convertible Notes is a combination of cash and shares with a Specified Cash Amount of USD 1,000. Counterparty acknowledges and agrees that it shall settle any Relevant Convertible Notes in which event the Calculation Agent shall same manner as provided in the Notice of Final Settlement Method it provides or is deemed to have the right to adjust the Dealer’s delivery obligation provided hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible NotesNotes that is not Net Share Settlement with a Specified Cash Amount of USD 1,000 that applies pursuant to Section 14.02(a)(iii) of the Indenture. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended, the Calculation Agent shall determine the Valuation Time in its reasonable discretion.
Appears in 1 contract
Samples: Vonage Holdings Corp
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any OptionsOptions on any Conversion Date, Counterparty (or the Trustee under the Indenture or any other agent authorized by the Counterparty) must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the such Options being exercised (the “Notice Deadline”) of (i) the number aggregate principal amount of Convertible Notes as to which such Conversion Date has occurred (including, if applicable, whether all or any portion of such OptionsConvertible Notes are Convertible Notes as to which additional Shares would be added to the Conversion Rate (as defined in the Indenture) pursuant to Section 4.07 of the Supplemental Indenture (the “Make-Whole Convertible Notes”)), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if applicable, the percentage of each Share otherwise issuable upon conversion in excess of the principal portion of the Convertible Notes being converted that Counterparty has elected a to pay in cash pursuant to Section 4.03(a)(1) of the Supplemental Indenture (the “Cash Percentage”), and such notice shall also include the information (including with respect to the Cash Percentage) and acknowledgements required pursuant to “Settlement Method Election Conditions” below; provided that if no Cash Percentage is specified in any Notice of Exercise, such Notice of Exercise shall nonetheless be valid and the Cash Percentage shall be deemed, for purposes of determining Dealer’s delivery obligation hereunder, to be 0%; provided further that, notwithstanding the foregoing, for any Options relating to Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date, such notice and the related automatic exercise of such Options shall be effective if given after the relevant Notice Deadline but prior to (x) in the case of any Options relating to Convertible NotesNotes surrendered for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion pursuant to Section 4.04 of the Supplemental Indenture and such designation is accepted by such financial institution, 5:00 p.m. (New York City time) on the 50th Scheduled Valid Day following the Notice Deadline (provided that such Cash Percentagenotice pursuant to this clause (x) must be given promptly following the time Counterparty first knows, or reasonably should know, of the occurrence of the event or condition with respect to such financial institution that would give rise to Counterparty’s obligation to deliver the relevant conversion consideration for such Convertible Notes pursuant to Section 4.04(c) of the Supplemental Indenture) and in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (x), the “Settlement Averaging Period” shall be deemed to be the 40 consecutive Valid Days beginning on, and including, the third Valid Day immediately following the date Dealer receives the related Notice of Exercise, or (y) otherwise, 5:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Notice Deadline and, in respect of any Options in respect of which such notice is delivered after the relevant Notice Deadline pursuant to this clause (y), the Calculation Agent shall have the right to adjust the number of Shares and/or amount of cash deliverable by Dealer with respect to such Options in a commercially reasonable manner as appropriate to reflect the additional costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities (including the unwinding of any hedge position) as a result of Dealer not having received such notice on or prior to the Notice Deadline; provided provided, further, that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given at any time before 5:00 p.m. (New York City time) on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination not Net Share Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses (iii) and (iv) above, as well as the information (including with respect to the Cash Percentage) and acknowledgements required pursuant to “Settlement Method Election Conditions” below. Notwithstanding Valuation Time: The close of trading of the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, regular trading session on the fifth Scheduled Valid Day following such Notice DeadlineExchange; provided that if the principal trading session is extended, in which event the Calculation Agent shall have determine the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially Valuation Time in its reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notesdiscretion.
Appears in 1 contract
Samples: Chart Industries Inc
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or but subject to the second paragraph set forth under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for before the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period for the Options being exercised (the “applicable Notice Deadline”) Deadline of (i) the number aggregate principal amount of Convertible Notes as to which a Conversion Date has occurred in respect of such OptionsNotice Deadline (including, if applicable, whether all or any portion of such Convertible Notes are Convertible Notes as to which additional Shares would be added to the “Conversion Rate” (as defined in the Indenture) pursuant to Section 14.03 of the Indenture and/or are Convertible Notes called for redemption or deemed called for redemption pursuant to Sections 16.01 or 16.02 of the Indenture), (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if Counterparty has elected a Cash Percentage the settlement method for the related Convertible NotesNotes is not Settlement in Cash or Net Share Settlement (each as defined below), the fixed percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes in cash (the “Cash Percentage”); provided that in respect of (1) any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date (other than those as described in the immediately succeeding clause (2)), and (2) any Options relating to Convertible Notes called for redemption or deemed called for redemption that are converted pursuant to Section 14.01(b)(v) of the Indenture with a Conversion Date occurring on or after the date Counterparty issues a Notice of Redemption with respect to such Convertible Notes in accordance with Sections 16.01 or 16.02 of 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, (A) such notice may be given on or prior to the Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) aboveabove (and, in the case of clause (2) in this proviso only, the number of Convertible Notes as to which Counterparty issued a Notice of Redemption), and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) from Counterparty or the Trustee (or other agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately succeeding the Free Convertibility Date Date, or concurrently with the delivery of the Notice of Redemption to Holders of the Convertible Notes, as the case may be, specifying the information required in clauses (iii) and and, if applicable, (iv) above; provided further that any “Notice of Exercise” or “Notice of Final Settlement Method” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Notice of Exercise or Notice of Final Settlement Method, as the case may be, pursuant to this Confirmation, and the terms of such Notice of Exercise or Notice of Final Settlement Method shall apply, mutatis mutandis, to this Confirmation. Notwithstanding anything to the foregoingcontrary herein, other than if the Notice of Final Settlement Method is not timely delivered, the Notice of Final Settlement Method shall be deemed timely given and the Relevant Settlement Method shall be deemed to be Net Share Settlement and Counterparty shall be deemed to have represented that it has not elected to settle all or any portion of its conversion obligations in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise Convertible Note in excess of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M.principal amount in cash, New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise either by specifying a Cash Percentage of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but 0% or not limited to, commercially reasonable losses actually incurred as timely specifying a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice DeadlineCash Percentage. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. If the Trustee (or any other such agent) on behalf of Counterparty provides any Notice of Exercise or Notice of Final Settlement Method to Dealer, Dealer shall be entitled to rely on the accuracy of any such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty.
Appears in 1 contract
Samples: Letter Agreement (Semtech Corp)
NOTICE OF EXERCISE. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to exercise any Options, Counterparty (or the Trustee under the Indenture (or any other agent authorized by the CounterpartyCounterparty and previously identified to Dealer by Counterparty in writing) on behalf of Counterparty must notify Dealer in writing (which, for the avoidance of doubt, may be by email) before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the scheduled first day of the Settlement Averaging Period (the “Exercise Notice Deadline”) for the Options being exercised (the “Notice Deadline”) of (i) the number of such Options, (ii) the scheduled first day of the Settlement Averaging Period and the scheduled Settlement Date, (iii) the Relevant Settlement Method for such Options, and (iv) if the Relevant Settlement Method is Combination Settlement, the percentage of the consideration due upon conversion per Convertible Note in excess of the principal amount thereof that Counterparty has elected to pay to Holders (as such term is defined in the Indenture) in cash (the “Cash Percentage”); provided that notwithstanding the foregoing, in respect of any Options relating to Convertible Notes with a Cash Percentage for Conversion Date occurring prior to the Free Convertibility Date, such notice (and the related Convertible Notesexercise of Options) shall be effective if given after the Exercise Notice Deadline, but prior to 4:00 p.m. (New York City time) on the fifth Scheduled Valid Day following the Exercise Notice Deadline, in which event the Calculation Agent shall have the right to adjust the delivery obligation under this Confirmation as appropriate to reflect the commercially reasonable additional costs (including, but not limited to, additional costs related to 12 Include for Additional Call Option Confirmation only. hedging mismatches and market losses and gains) and commercially reasonable expenses incurred by Dealer in connection with commercially reasonable hedging activities (including the unwinding of any commercially reasonable Hedge Positions) as a result of Dealer not having received such Cash Percentagenotice on or prior to the Exercise Notice Deadline and Dealer’s obligation to make any payment or delivery in respect of such exercise shall not be extinguished; and provided further that in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, (A) such notice may be given on or prior to the second Scheduled Valid Day immediately preceding the Expiration Date and need only specify the information required in clause (i) above, and (B) if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying the information required in clauses clause (iii) and and, if applicable, clause (iv) above. Notwithstanding the foregoing, other than in respect of any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, such notice (and the related exercise of Options) shall be effective if given after the applicable Notice Deadline specified above but prior to 5:00 P.M., New York City time, on the fifth Scheduled Valid Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Dealer’s delivery obligation hereunder, with respect to such exercise of Options, as appropriate to reflect the additional actual out-of-pocket costs (including, but not limited to, commercially reasonable losses actually incurred as a result of hedging mismatches and actual market losses) and reasonable and documented out-of-pocket expenses actually incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position) as a result of it not having received such notice prior to such Notice Deadline. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes. The parties hereto agree and acknowledge that if the Trustee or any other agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing on behalf of Counterparty provides notice to Dealer as provided for in the second immediately preceding sentence, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation. Valuation Time: At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended past the close of the regular trading session for the Exchange, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.
Appears in 1 contract
Samples: Rambus Inc
