Common use of Notice of Final Settlement Method Clause in Contracts

Notice of Final Settlement Method. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to elect a Settlement Method other than Net Share Settlement, 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 Free Convertibility Date specifying (1) the Relevant Settlement Method elected by Counterparty, and (2) if the elected Relevant Settlement Method is Combination Settlement, a fixed amount of cash (which amount must exceed USD 1,000) elected by Counterparty (the “Specified Cash Amount”); provided that (a) Counterparty must make a single irrevocable election for all Options and (b) if Counterparty is electing Cash Settlement or Combination Settlement, such Settlement Method Election shall be effective only if Counterparty represents and warrants to Dealer in writing on the date of such Settlement Method Election that (i) Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, and (ii) such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. Without limiting the generality of the foregoing, 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 and the Relevant Settlement Method.

Notice of Final Settlement Method. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to elect a Settlement Method other than Net Share Settlement, 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 Free Convertibility Date specifying (1) the Relevant Settlement Method elected by Counterparty, and (2) if the elected Relevant Settlement Method is Combination Settlement, a fixed amount of cash (which amount must exceed be greater than USD 1,000) elected by Counterparty (the “Specified Cash Amount”); provided that (a) Counterparty must make a single irrevocable election for all Options and (b) if Counterparty is electing Cash Settlement or Combination Settlement, such Settlement Method Election shall be effective only if Counterparty represents and warrants to Dealer in writing on the date of such Settlement Method Election that (i) Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, and (ii) such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. Without limiting the generality of the foregoing, 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 and the Relevant Settlement Method.

Notice of Final Settlement Method. Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, in order to elect a Settlement Method other than Net Share Cash Settlement, 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 Free Convertibility Date specifying (1) the Relevant Settlement Method elected by Counterparty, and (2) if the elected Relevant Settlement Method is Combination Settlement, a fixed amount of cash (which amount must exceed USD 1,000) elected by Counterparty (the “Specified Cash Amount”) and (3) whether Counterparty has elected to settle its conversion obligations in respect of related Convertible Note entirely in Shares (“Settlement in Shares”) or in a combination of cash and Shares with a Specified Cash Amount less than USD 1,000 (“Low Cash Combination Settlement”); provided that (a) Counterparty must make a single irrevocable election for all Options and (b) if Counterparty is electing Cash Settlement or Combination Settlement, such Settlement Method Election shall be effective only if Counterparty represents and warrants to Dealer in writing on the date of such Settlement Method Election that (i) Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, and (ii) such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws. Without limiting the generality of the foregoing, Counterparty acknowledges its responsibilities under applicable United States and Canadian 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 and the Relevant Settlement Method.