Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.
Appears in 2 contracts
Sources: Base Capped Call Transaction (Sunedison, Inc.), Additional Capped Call Transaction (Sunedison, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) of this Confirmation or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer or assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by M▇▇▇▇’▇ Investor Service, Inc. (“M▇▇▇▇’▇”) or, if either S&P or M▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (x) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (y) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viz)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Equity Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that Parent is subject to Section 16 of the Exchange Act and, for any reason, the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any foreign, federal, state or local law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty or Parent that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in (y), (z)(1) and (z)(2) of this paragraph will not occur upon or after the transfer or assignment.
Appears in 2 contracts
Sources: Call Option Transaction (Oddity Tech LTD), Base Call Option Transaction (Oddity Tech LTD)
Transfer or Assignment. Counterparty (i) Dealer may transfer or assign (a “Transfer”) all or any part of its rights or obligations under the Transaction (A) without the prior written Counterparty’s consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to affiliate of Dealer, but, only if (iii1) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and or assignment, (vi2) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition as a result of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determinationsuch Transfer, Counterparty will not be required, as a result of such transfer, required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement Master Agreement, as applicable, greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment and (3) such affiliate of Dealer (x) has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer or (y) whole obligations hereunder will be guaranteed, pursuant to terms of a customary guarantee in a form used by Dealer generally for similar transactions by Dealer, or (B) with Counterparty’s consent (whose consent shall not be unreasonably withheld)
(1) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness (or to any other third party whose obligations are guaranteed by an entity with a rating for its long term, unsecured and unsubordinated indebtedness) equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer and (2) as a result of such Transfer, Counterparty will not be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Master Agreement, as applicable, greater than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment. Dealer shall provide prior written notice to Counterparty of any such Transfer.
Appears in 2 contracts
Sources: Physical Delivery Share Forward Transaction (Maxeon Solar Technologies, Ltd.), Physical Delivery Share Forward Transaction (Sunpower Corp)
Transfer or Assignment. i. Counterparty may shall have the right to transfer or assign all or any of its rights or and obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer hereunder with respect to all or any legal of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and regulatory requirements relevant applied in a non-discriminatory manner, including but not limited, to Dealerthe following conditions:
A. With respect to any Transfer Options, (iiiCounterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) the transferee being or any obligations under Section 9(o) or 9(t) of this Confirmation;
B. Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the U.S. Internal Revenue Code of 1986, as amended (the “Code”);
C. Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;
D. Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment;
E. Dealer will not, as a result of such transfer or assignment, receive from the transferee or assignee an amount (vtaking into account any additional amounts paid under Section 2(d)(i)(4) that, of the Agreement as well as any withholding or deduction) that is less than the amount that Dealer would have received from Counterparty in Dealer’s reasonable determination, no the absence of such transfer or assignment;
F. An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
G. Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to such tax documentation as may be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed reasonably requested by Dealer (or its guarantor); provided that, to permit Dealer to determine that results described in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.clauses
Appears in 2 contracts
Sources: Call Option Transaction (GoPro, Inc.), Base Call Option Transaction (GoPro, Inc.)
Transfer or Assignment. Counterparty Company may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer provided may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the following conditions are satisfied: Transaction at any time to any affiliate of Dealer (iA) that has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than the receipt best of Dealer’s credit rating and the credit rating of any guarantor of Dealer’s obligations hereunder, in each case, at the time of the transfer or assignment, or (B) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or any parent of opinions Dealer that has a credit rating that is equal to or better than the best of Dealer’s credit rating and documentation reasonably satisfactory the credit rating of any guarantor of Dealer’s obligations hereunder, in each case, at the time of the transfer or assignment; provided that any such transfer or assignment shall be subject to Dealer in connection with the conditions that (I) following such transfertransfer or assignment, the terms and conditions of the Agreement as so transferred or assigned (the “Transferred Agreement”) shall be substantially the same as the terms and conditions of the Agreement immediately prior to such transfer or assignment, (iiII) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer Company will not be required, as a result of such transfer, required to pay to the transferee an amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) of the Transferred Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty amount in the absence respect of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty which Company would have been required to pay to Dealer under Section 2(d)(i)(4) in the absence of the transfer, (III) Company will not receive any payment under the Transferred Agreement from which an amount is required to be withheld or deducted for or on account of a Tax with respect to which no additional amount is required to be paid by the transferee under Section 2(d)(i)(4) of the Transferred Agreement (other than by reason of Section 2(d)(i)(4)(A) or (B) thereof), (IV) neither an Event of Default with respect to which Dealer is the Defaulting Party nor a Termination Event with respect to which Dealer is the sole Affected Party has occurred and is continuing at the time of the transfer, and neither an Event of Default nor a Termination Event shall occur as a result of the transfer, (V) each of Dealer and the transferee is a dealer in “notional principal contracts” within the meaning of Section 1.446-3(c)(4)(iii) of the U.S. Treasury Regulations and in other derivatives, and (VI) Dealer has used its good faith efforts to provide prior notice to Company of such transfer and the proposed date of such transfer., and shall provide written notice to Company reasonably promptly following such transfer. In addition, if at any time (A) the Section 16 Percentage exceeds 7.5%, (B) the Warrant Equity Percentage exceeds
Appears in 2 contracts
Sources: Warrant Agreement (Tower Group, Inc.), Warrant Agreement (Tower Group, Inc.)
Transfer or Assignment. Counterparty Company may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer provided may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect Transaction to any legal and regulatory requirements relevant to Dealer, third party; provided that (iiix) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment, (viy) that Counterparty will continue to Dealer shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, Dealer may including reasonable counsel fees, incurred by Company in connection with such transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company assignment, and has an equal or better creditworthiness than Dealer (or its guarantor’sz) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of any such transfertransfer or assignment (i) Company will not (including, for the avoidance of doubt, after giving effect to pay any indemnity from the transferee an amount or assignee to Company provided in connection with such transfer or assignment) receive from the transferee or assignee on any payment date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction) an amount lower than the amount that Company would have been entitled to receive from Dealer in the absence of such transfer or assignment (except to the extent such lower amount results from a change in law after the date of such transfer or assignment), (ii) Company will not be required to pay or deliver to such assignee or transferee on any payment date or delivery date (taking into account any additional amount required to be paid by Company under Section 2(d)(i)(4) of the Agreement) an amount or a number of Shares, as applicable, greater than the amountamount or the number of Shares, if anyas applicable, that Counterparty Company would have been required to pay or deliver to Dealer in the absence of such transfer.transfer or assignment, and (iii) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Company to permit Company to determine that the results described in clause (z)(i) or (ii) will not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Warrants equal to the number of Warrants underlying the Terminated Portion, (2) Company were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Company to Dealer pursuant to this sentence as if Company were not the Affected Party); provided that in calculating any amount due following such designation, Dealer shall act in good faith and a commercially reasonable manner and upon written request from Company, Dealer will promptly provide to Company a statement displaying in reasonable detail the basis for such calculation (it being understood that Dealer shall not be required to disclose any proprietary models or information or confidential models or information used by it in connection with such calculation). The “
Appears in 1 contract
Sources: Warrant Agreement (DoorDash, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(o) or 9(t) of this Confirmation;
(B) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and documentation other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer in connection with such transfer, Dealer;
(iiC) As of the date of such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determinationor assignment, Dealer will not be requirednot, as a result of such transfertransfer or assignment, (i) receive from the transferee or assignee on any payment or delivery date any payment or delivery less than an amount that Dealer would have been entitled to receive from Counterparty in the absence of such transfer or assignment or (ii) be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment;
(vD) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(E) The transferee or assignee shall provide Dealer with a complete and accurate U.S. Internal Revenue Service Form W-9 or W-8 (as applicable) prior to becoming a party to the Transaction;
(F) Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that as of the date of such transfer or assignment, the results described in clauses (C) and (viD) that will not occur as a result of such transfer or assignment; and
(G) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is a 100% owned direct equal to or indirect subsidiary of better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer [or its ultimate parent company parent]15, or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld) to any financial institution that (I) is regulated (or whose guarantor is regulated) as to matters of financial integrity and soundness by a financial regulator of a G10 member country and (II) has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that the transferee or assignee shall be a taxpayer who meets the definition of a dealer in securities in Section 475(c)(1) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or whose obligations would be guaranteed by Dealer (or its guarantor)is a dealer in commodities derivative contracts; provided that, in Dealer’s reasonable determinationfurther that (x) as of the date of such transfer or assignment, Counterparty will not be requiredshall not, as a result of such transfertransfer or assignment, (i) receive from the transferee or assignee on any payment or delivery date any payment or delivery less than an amount that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment or (ii) be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, (y) the transferee or assignee shall provide Counterparty with a complete and accurate U.S. Internal Revenue Service Form W-9 or W-8 (as applicable) prior to becoming a party to the Transaction and (z) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that as of the date of such transfer or assignment, the results described in clause (x) will not occur as a result of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 15 Include if Dealer is not parent entity.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Either of Counterparty and Parent shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, neither Counterparty nor Parent shall be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s , will not expose Dealer to material risks under applicable securities laws) and execution of any reasonable determinationand necessary documentation and delivery of reasonable and customary legal opinions with respect to securities laws and other matters by such third party and Counterparty or Parent, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment and after giving effect thereto, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty or Parent in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event with respect to Counterparty will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue and Parent shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Each of Counterparty and Parent shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may (A) without Counterparty’s or Parent’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by GS Group generally for similar transactions, by GS Group, or (B) in consultation with Counterparty and/or Parent, and with Counterparty’s and/or Parent’s prior written consent (which consent not to be delayed or unreasonably withheld), transfer or assign all or any part of its affiliates that is rights or obligations under the Transaction to any other third party with a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an long-term issuer rating equal to or better creditworthiness than Dealer the lesser of (1) the credit rating of GS Group at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty, Parent and Dealer; provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.:
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty and regulatory requirements relevant Parent shall not be released from their respective notice and indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfertransfer and assignment;
(E) Dealer will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date (vafter accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) that, of the Agreement as well as any withholding or deduction of Tax from the payment) an amount less than it would have been entitled to receive from Counterparty in Dealer’s reasonable determination, no the absence of such transfer or assignment;
(F) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viG) Without limiting the generality of clause (B), the transferee or assignee shall make such Payee Tax Representations and provide a properly executed U.S. Internal Revenue Service Form W-9, or any successor thereto, and such other tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(H) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the Counterparty’s or Parent’s consent of Counterparty (but with prompt subsequent (but in no event more than two Exchange Business Days) written notice to Counterparty) to any affiliate or branch of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer [or Dealer’s ultimate parent] generally for similar transactions, by Dealer [or Dealer’s ultimate parent, as applicable] (provided that in connection with any assignment or transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company recognized dealer in the market for U.S. corporate equity derivatives and that has an a long- term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard and Poor’s Financial Services LLC or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed A3 by Dealer (M▇▇▇▇’▇ Investor Service, Inc. or its guarantor)successor (“M▇▇▇▇’▇”) or, if either S&P or M▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, Counterparty (I) such a transfer or assignment shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not be required, occur as a result of such transfertransfer and assignment; and (II) at the time of such transfer or assignment the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code. In addition, (A) the transferee or assignee shall agree that following such transfer or assignment, Counterparty will not (x) receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment or delivery) an amount lower than the amount that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment or (y) be required to pay the such assignee or transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment and (B) the transferee or assignee shall make such Payee Tax Representations and shall provide such tax documentation as may be reasonably requested by Counterparty including in order to permit Counterparty to make any necessary determinations pursuant to clause (A) of this sentence and to determine that the statement in clause (II) of the proviso that precedes (A) is correct. If at any time at which (A) the Section 16 Percentage exceeds 4.9%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions), then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions). In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number
Appears in 1 contract
Sources: Call Option Transaction (Hertz Corp)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by M▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.to
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any 13 Insert the number of its rights or obligations under Shares that, if repurchased, would cause the Dealer with the highest Applicable Percentage’s current position in the Shares underlying the Transaction without (including the prior written consent number of Dealer provided Shares underlying any additional transaction if the following conditions are satisfied: greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty) to increase by a further 0.5% from the threshold for the first Repurchase Notice.
(i) Counterparty shall have the receipt right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(B) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and documentation other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer in connection with such transfer, Dealer;
(iiC) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be requirednot, as a result of such transfertransfer and assignment, (i) receive from the transferee or assignee on any payment or delivery date any payment or delivery less than an amount that Dealer would have been entitled to receive from Counterparty in the absence of such transfer or assignment or (ii) be required to pay the transferee on any payment date an amount (including, without limitation, under Section 2(d)(i)(4) of the Agreement Agreement) greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment;
(vD) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viE) that The transferee or assignee shall provide Dealer with a complete and accurate U.S. Internal Revenue Service Form W-9 or W-8 (as applicable) prior to becoming a party to the Transaction;
(F) Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (C) and (D) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is a 100% owned direct equal to or indirect subsidiary better than the credit rating of Dealer’s ultimate parent company and has an equal Credit Support Provider, if any or, if no Credit Support Provider is specified for Dealer, the credit rating of Dealer, in each case at the time of such transfer or better creditworthiness than Dealer assignment, or (or its guarantor’s2) or whose obligations would hereunder will be guaranteed guaranteed, pursuant to the terms of a customary guarantee in a form used generally for similar transactions, by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amountCredit Support Provider, if any, that Counterparty would have been required [or its ultimate parent]14, or (B) to pay any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer, Dealer’s ultimate parent, or the Credit Support Provider (if any) whichever is highest at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually 14 Include if Dealer in the absence of such transferis not parent entity and no Credit Support Provider is designated.
Appears in 1 contract
Transfer or Assignment. Counterparty Company may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer provided may, without Company’s consent, transfer or assign all or any part of its rights or obligations under the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect Transaction to any legal and regulatory requirements relevant to Dealer, affiliate of Dealer or any internationally recognized investment bank; provided that (iiiv) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer Company will not be required, as a result of such transfertransfer or assignment, to pay or deliver to the transferee or assignee on any payment or delivery date any payment or delivery greater than an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer Company would have been required to pay to Counterparty Dealer in the absence of such transfertransfer or assignment (including, without limitation, pursuant to Section 2(d)(i)(4) of the Agreement), (w) Company will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment or delivery date any payment or delivery less than the amount that Company would have been entitled to receive from Dealer in the absence of such transfer or assignment, (x) the transferee or assignee shall provide Company with a complete and accurate U.S Internal Revenue Service Form W-8 or W-9 (as applicable), and shall make such Payee Tax Representations to permit Company to determine that the results described in clauses (v) thatand (w) will not occur upon or after such transfer and assignment, in Dealer’s reasonable determination, (y) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment and (viz) that Counterparty will continue to Dealer shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, Dealer may including reasonable counsel fees, incurred by Company in connection with such transfer or assign all or a portion of its Capped Note Hedging Units hereunder assignment. If at any time without at which (A) the consent of Counterparty to any of its affiliates that is a 100% owned direct Section 16 Percentage exceeds 9.0%, (B) the Warrant Equity Percentage exceeds 14.5%, or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’sC) or whose obligations would be guaranteed by Dealer the Share Amount exceeds the Applicable Share Limit (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.if
Appears in 1 contract
Transfer or Assignment. Counterparty (i) Dealer may transfer or assign (a “Transfer”) all or any part of its rights or obligations under the Transaction (A) without the prior written Counterparty’s consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to affiliate of Dealer, but, only if (iii1) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and or assignment, (vi2) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition as a result of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determinationsuch Transfer, Counterparty will not be required, as a result of such transfer, required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement Master Agreement, as applicable, greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment and (3) such affiliate of Dealer (x) has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer or (y) whole obligations hereunder will be guaranteed, pursuant to terms of a customary guarantee in a form used by Dealer generally for similar transactions by Dealer, or (B) with Counterparty’s consent (whose consent shall not be unreasonably withheld)
(1) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness (or to any other third party whose obligations are guaranteed by an entity with a rating for its long term, unsecured and unsubordinated indebtedness) equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer and (2) as a result of such Transfer, Counterparty will not be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Master Agreement, as applicable, greater than the amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment. Dealer shall provide prior written notice to Counterparty of any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Forward Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of a portion of the Transaction to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment (or if applicable, in accordance with and subject to Section 7(f), delivery) shall be made pursuant to Section 6 of the Master Agreement as if (1) an Early Termination Date had been designated in respect of
Appears in 1 contract
Sources: Prepaid Forward Share Purchase Transaction (Sunpower Corp)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty and regulatory requirements relevant Parent shall not be released from their respective notice and indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfertransfer and assignment;
(E) Dealer will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date (vafter accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) that, of the Agreement as well as any withholding or deduction of Tax from the payment) an amount less than it would have been entitled to receive from Counterparty in Dealer’s reasonable determination, no the absence of such transfer or assignment;
(F) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viG) Without limiting the generality of clause (B), the transferee or assignee shall make such Payee Tax Representations and provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(H) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the Counterparty’s or Parent’s consent of Counterparty (but with prompt subsequent (but in no event more than two Exchange Business Days) written notice to Counterparty) to any affiliate or branch of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, as applicable (provided that in connection with any assignment or transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A-by Standard and Poor’s Financial Services LLC or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed A3 by Dealer (▇▇▇▇▇’▇ Investor Service, Inc. or its guarantor)successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, Counterparty (I) such a transfer or assignment shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not be required, occur as a result of such transfertransfer and assignment; and (II) at the time of such transfer or assignment the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code. In addition, (A) the transferee or assignee shall agree that following such transfer or assignment, Counterparty will not (x) receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment or delivery) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Counterparty would have been entitled to receive from Dealer in the absence of such transfer or assignment or (y) be required to pay the such assignee or transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment and (B) the transferee or assignee shall make such Payee Tax Representations and shall provide such tax documentation as may be reasonably requested by Counterparty including in order to permit Counterparty to make any necessary determinations pursuant to clause (A) of this sentence and to determine that the statement in clause (II) of the proviso that precedes (A) is correct. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions), then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions). In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable Canadian and United States securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable Canadian and United States securities laws) and execution of any documentation and delivery of legal opinions with respect to applicable Canadian and United States securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 13 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 13 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act applies with respect to the Shares and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “
Appears in 1 contract
Transfer or Assignment. Counterparty may Notwithstanding any provision of the Agreement to the contrary, Citibank may, subject to applicable law, freely transfer any and assign all of its rights or and obligations under the Transaction without the prior written consent of Dealer provided Counterparty. If, as determined in Citibank's sole discretion, (x) its "beneficial ownership" (within the meaning of Section 16 of the Exchange Act and rules promulgated thereunder) exceeds 8.5% of Counterparty's outstanding Shares and (y) Citibank is unable, after commercially reasonable efforts, to effect a transfer or assignment on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction to reduce such "beneficial ownership" below 8.5%, Citibank may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the "Terminated Portion") of this Transaction, such that its "beneficial ownership" following conditions are satisfied: such partial termination will be approximately equal to but less than 8.5%. In the event that Citibank so designates an Early Termination Date with respect to a portion of this Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Warrants equal to the receipt by Dealer Terminated Portion (allocated among the Components thereof in the discretion of opinions and documentation reasonably satisfactory to Dealer in connection with such transferCitibank), (ii) such transfer being effected on terms reasonably satisfactory to Dealer Counterparty shall be the sole Affected Party with respect to any legal such partial termination and regulatory requirements relevant to Dealer, (iii) such Transaction shall be the transferee being a United States person only Terminated Transaction (as defined in and, for the Code)avoidance of doubt, (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” the caption "Alternative Calculations and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at Counterparty Payment on Early Termination and on Certain Extraordinary Events" shall apply to any time without the consent of amount that is payable by Counterparty to Citibank pursuant to this sentence). Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Citibank to purchase, sell, receive or deliver any shares or other securities to or from Counterparty, Citibank may designate any of its affiliates that is a 100% owned direct to purchase, sell, receive or indirect subsidiary of Dealer’s ultimate parent company deliver such shares or other securities and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose otherwise to perform Citibank's obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) respect of the Agreement greater than Transaction and any such designee may assume such obligations. Citibank shall be discharged of its obligations to Counterparty to the amount, if any, that Counterparty would have been required to pay to Dealer in the absence extent of any such transferperformance.
Appears in 1 contract
Sources: Equity Derivatives Confirmation (Molson Coors Brewing Co)
Transfer or Assignment. Counterparty may Buyer has no right to assign, sell or transfer Buyer’s interest in this Agreement without Seller's written consent, which shall not be unreasonably withheld and/or delayed. Without requiring the consent of Seller, provided that all 21 Units are assigned simultaneously to a single assignee in single assignment of purchase agreement, Buyer shall be permitted to assign all of its rights and obligations under the Agreement and all of its interest in the Units once to any single immediate family member, any single trust for the benefit of Buyer and/or its immediate family members and/or any single corporation, partnership or other single entity which is beneficially owned by Buyer (or its immediate family members), or any single entity under the common control of the Buyer, provided only that the assignee assumes in writing, for the benefit of Seller, all of Buyer’s duties and obligations under the Agreement and said assumption is delivered to Seller promptly following said assignment and in no event less than three (3) days prior to closing. For clarification, the Buyer has no right to assign some or a portion of the Units. Notwithstanding the foregoing, said assignment shall not release Buyer from any of its rights or obligations under this Agreement. Seller may freely assign, transfer or sell any or all of Seller's rights and obligations under this Agreement. If Seller decides to sell all or any part of the Transaction without the prior written Condominium, Seller may assign or transfer Seller's interest in this Agreement and Buyer’s consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required. Notwithstanding the foregoing, as a result of such transfersaid sale or assignment shall not release the named Seller from any duties, to pay obligations or responsibilities under this Agreement or the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transferCondominium Documents.
Appears in 1 contract
Sources: Agreement for Sale (Optibase LTD)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party).
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Mirion Technologies, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) hereof or any obligations under Section 10(o) or 10(t) hereof;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate of Dealer (1) that has a rating for its affiliates long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company and has an equal parent, or better creditworthiness than Dealer (or its guarantor’sB) or whose obligations would be guaranteed by Dealer with Counterparty’s consent (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty which consent will not be requiredunreasonably withheld) to any other third party with a rating for its long term, as unsecured and unsubordinated indebtedness equal to or better than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or Baa1 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a result of such transfer, to pay substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (x) the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if in any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.
Appears in 1 contract
Transfer or Assignment. Counterparty Neither party may transfer or assign any of its rights or obligations under the Transaction without the prior written consent of the other party; provided that the Dealer provided may, subject to applicable law, freely transfer and assign all of its rights and obligations under the following conditions are satisfied: (i) Transaction without the receipt by Dealer consent of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect Counterparty to any legal and regulatory requirements relevant to affiliate of the Dealer, (iii) so long as the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result obligations of such transfertransferee or assignee under the Transaction are guaranteed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amountit being agreed that Counterparty shall not, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment to an affiliate of Dealer, be required under the Agreement or this Confirmation to (vii) that Counterparty will continue to be obligated to provide notices hereunder relating pay to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer transferee or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee assignee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty it would have been required to pay to Dealer in the absence of such transfer or assignment or (ii) receive from the transferee or assignee an amount less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, in each case based on the circumstances in effect on the date of such transfer. If Counterparty, in good faith and in its commercially reasonable judgment, has determined that Counterparty has bona fide concerns with the creditworthiness of Dealer or Dealer’s ability to perform its obligations hereunder (in each case, a “Credit Event”), then (i) Counterparty shall have the right to request in writing that Dealer transfer and assign all of its rights and obligations under this Transaction to a third party designated by Counterparty in such written request and (ii) Dealer, to the extent that such Credit Event is continuing, shall use commercially reasonable efforts to effect such transfer and assignment at the fair market value of this Transaction, provided that such transfer and assignment is contingent upon the payment by Counterparty to Dealer of a transfer fee equal to the greater of:
(A) an amount equal to the product of 4 basis points (0.04%), the then current Forward Price, and the then current Number of Shares; and
(B) an amount equal to the product of 25 basis points (0.25%), the then current Forward Price, the then current Number of Shares, and the quotient of (I) the number of days from and including the date of such transfer and assignment to but excluding the Maturity Date, divided by (II) the number of days from and including the Effective Date to but excluding the Maturity Date. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.
Appears in 1 contract
Sources: Share Forward Transaction (Capital One Financial Corp)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) hereof or any obligations under Section 10(o) or 10(t) hereof;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or any part of its rights or obligations under the Transaction to any affiliate of Dealer (1) that has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (which consent will not be unreasonably withheld) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or Baa1 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (x) the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (y) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and provided further that Dealer shall provide prompt written notice to Counterparty following any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at the Transaction (the “Terminated Portion”), such that (after giving effect to such transfer or assignment and any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, resulting change in Dealer’s commercially reasonable determinationHedge Positions) following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, Counterparty will not a payment shall be required, as a result of such transfer, made pursuant to pay the transferee an amount under Section 2(d)(i)(4) 6 of the Agreement greater than as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the amountTransaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) hereof shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if any, that Counterparty would have been required to pay to Dealer in was not the absence of such transfer.Affected Party). The “
Appears in 1 contract
Sources: Call Option Transaction (Dexcom Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations (if any) and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section (iiib) the transferee being or any obligations under Section (o) or(t) of this Confirmation;
(B) Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to applicable securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, nor receive from the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate or branch of Dealer (1) that has a rating for its affiliates long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company parent, or (B) with Counterparty’s consent (which consent will not be unreasonably withheld) to any other third party with a rating for its long term, unsecured and has an unsubordinated indebtedness equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or Baa1 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer a substitute rating agency mutually agreed by Counterparty and Dealer; provided that such transferee is an “eligible contract participant” (or its guarantoras such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended); provided further that, in the case of a transfer or assignment under (A) or (B) above, (i) under the applicable law effective on the date of transfer or assignment by Dealer’s reasonable determination, (1) Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment and (3) such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes; (ii) Dealer shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in clause (i) of this proviso will not occur upon or after such transfer or assignment; and (iii) Dealer shall provide prompt written notice to Counterparty following any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding on such day. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could reasonably be expected to give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could reasonably be expected to result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
Appears in 1 contract
Sources: Call Option Transaction (Progress Software Corp /Ma)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to, the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that the results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by M▇▇▇▇’▇ Investor Service, Inc. or its successor (“M▇▇▇▇’▇”) or, if either S&P or M▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) of this Confirmation or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested by and reasonably satisfactory to Dealer;
(D) Dealer will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no No Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee or assignee to be obligated make such Payee Tax Representations and to provide notices hereunder relating an IRS Form W-9 and such other tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer or assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the consent of Counterparty Counterparty’s consent, to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company and has an or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld) to any other recognized dealer in transactions of the same type as the Transaction with a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard & Poor’s Financial Services LLC or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty and Dealer; provided thatthat Dealer may transfer or assign pursuant to this paragraph only if (A) either (i) the transferee or assignee is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, in Dealer’s reasonable determinationor (ii) the transfer or assignment does not otherwise constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code, (B) Counterparty will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), as a result of such transfer, to pay any withholding or deduction made by the transferee an amount or assignee as a result of any Tax, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.as well as such
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to, the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer or assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay or deliver to the transferee or assignee on any payment date or delivery date an amount or number of Shares, as applicable, (after accounting for amounts payable by Dealer to the transferee or assignee under Section 2(d)(i)(4) of the Agreement Agreement) greater than the amountamount or number of Shares, if anyas applicable, that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment, except to the extent that the greater amount or number of Shares, as applicable, is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment (after accounting for amounts payable by the transferee or assignee to Dealer under Section 2(d)(i)(4) of the Agreement on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), as well as any withholding or deduction of Tax from the payment or delivery) except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide a properly executed IRS Form W-9 and any other such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that the results described in clause (D) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Hims & Hers Health, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to, the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer or assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay or deliver to the transferee or assignee on any payment date or delivery date an amount or number of Shares, as applicable, (after accounting for amounts payable by Dealer to the transferee or assignee under Section 2(d)(i)(4) of the Agreement Agreement) greater than the amountamount or number of Shares, if anyas applicable, that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment, except to the extent that the greater amount or number of Shares, as applicable, is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment (after accounting for amounts payable by the transferee or assignee to Dealer under Section 2(d)(i)(4) of the Agreement on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), as well as any withholding or deduction of Tax from the payment or delivery) except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide a properly executed IRS Form W-9 and any other such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that the results described in clause (D) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Hims & Hers Health, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.or
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Mirion Technologies, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable Canadian and United States securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable Canadian and United States securities laws) and execution of any documentation and delivery of legal opinions with respect to applicable Canadian and United States securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 13 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 13 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act applies with respect to the Shares and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in (ii), (iii)(1) and (iii)(2) of this paragraph will not occur upon or after the transfer and assignment.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) or any obligations under Section 10(o) or 10(t) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested by, and reasonably satisfactory to, Dealer;
(1) Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee (or deliver to the transferee) on any payment date or delivery date an amount or number of Shares, as applicable, under Section 2(d)(i)(4) of the Agreement greater than the amountamount or number of Shares, if anyas applicable, that Dealer would have been required to pay (or deliver, as the case may be) to Counterparty in the absence of such transfertransfer or assignment, and (v2) thatDealer will not, as a result of such transfer and assignment, receive from the transferee on any payment date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment) an amount that is less than the amount that Dealer would have received from Counterparty in Dealer’s reasonable determination, no the absence of such transfer and assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the Counterparty’s consent of Counterparty (but with prior written notice to Counterparty), to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company (provided that in connection with any assignment or transfer pursuant to clause (A)(1) hereof, a failure by Dealer to give a prior written notice thereof shall not affect the validity of such transfer or assignment, and in connection with any assignment or transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay at the transferee an amount under Section 2(d)(i)(4) time of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment and (2) A- by Standard and
Appears in 1 contract
Sources: Base Call Option Transaction (Aerie Pharmaceuticals Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer
Appears in 1 contract
Sources: Base Call Option Transaction (Mirion Technologies, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Either of Counterparty and Parent shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, neither Counterparty nor Parent shall be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9.(b) or any obligations under Section 9.(n) or 9.(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s , will not expose Dealer to material risks under applicable securities laws) and execution of any reasonable determinationand necessary documentation and delivery of reasonable and customary legal opinions with respect to securities laws and other matters by such third party and Counterparty or Parent, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment and after giving effect thereto, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty or Parent in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event with respect to Counterparty will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue and Parent shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Each of Counterparty and Parent shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may (A) without Counterparty’s or Parent’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer, or (B) in consultation with Counterparty and/or Parent, and with Counterparty’s and/or Parent’s prior written consent (which consent not to be delayed or unreasonably withheld), transfer or assign all or any part of its affiliates that is rights or obligations under the Transaction to any other third party with a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty, Parent and Dealer; provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.:
Appears in 1 contract
Sources: Base Call Option Transaction (Nabors Industries LTD)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended) (the “Revenue Code”);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfertransfer and assignment, to pay (i) receive from the transferee an amount or assignee on any payment or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment or delivery) any payment or delivery less than an amount that Dealer would have been entitled to receive from Counterparty in the absence of such transfer or assignment or (ii) be required to pay the transferee on any payment date an amount (including, without limitation, under Section 2(d)(i)(4) of the Agreement) greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee or assignee to be obligated make such Payee Tax Representations and to provide notices hereunder relating a properly executed U.S. Internal Revenue Service (“IRS”) Form W-9 and any such other tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the consent of Counterparty Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer or its affiliates ultimate parent generally for similar transactions, by Dealer or its ultimate parent (provided that in connection with any Transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement) or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any third party financial institution that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantor’ssuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or whose obligations would be guaranteed ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any Transfer (I) such a Transfer shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such Transfer; (II) at the time of such Transfer either (i) each of Dealer and the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Revenue Code or (ii) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Revenue Code; and (III) after any such Transfer (a) Counterparty will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), as a result of such transfer, to pay any withholding or deduction made by the transferee an amount or assignee as a result of any Tax, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement greater as well as such withholding or deduction of Tax from the payment or delivery) an amount or a number of Shares, as applicable, lower than the amountamount or the number of Shares, if anyas applicable, that Counterparty Dealer would have been required to pay or deliver to Dealer Counterparty in the absence of such transfer.Transfer (except to the extent such lower amount or number results from a Change in Tax Law (as defined in the Agreement) after the date of such Transfer), and (b) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to make any necessary determinations pursuant to clause (III)(a) of this proviso; provided further that Dealer shall promptly provide written notice to Counterparty following such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) hereof or any obligations under Section 10(o) or 10(t) hereof;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (viE) that will not occur upon or after such transfer or assignment; and
(G) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all commercially reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or any part of its rights or obligations under the Transaction to any affiliate of Dealer (1) that has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (which consent will not be unreasonably withheld) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or Baa1 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (x) each of Dealer and the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (y) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and provided further that Dealer shall provide prompt written notice to Counterparty following any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at the Transaction (the “Terminated Portion”), such that (after giving effect to such transfer or assignment and any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, resulting change in Dealer’s commercially reasonable determination, Counterparty will not be required, as a result of Hedge Positions) following such transfer, to pay partial termination no Excess Ownership Position exists. In the transferee event that Dealer so designates an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.Early Termination Date with
Appears in 1 contract
Sources: Call Option Transaction (CSG Systems International Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Code)Internal Revenue Code of 1986, as amended (ivthe “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay or deliver to the transferee an or assignee on any payment date or delivery date a payment amount or a number of shares under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, payment amount or number of shares that Dealer would have been required to pay or deliver, as applicable, to Counterparty in the absence of such transfer, (v) that, transfer and assignment except to the extent that the greater payment amount or number of shares is due to a Change in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result Tax Law after the date of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.assignment;
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended) (the “Revenue Code”);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide a properly executed U.S. Internal Revenue Service Form W-9 and any such other tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (viE) that will not occur upon or after such transfer or assignment; and
(G) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the consent of Counterparty Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer or its affiliates ultimate parent generally for similar transactions, by Dealer or its ultimate parent (provided that in connection with any Transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement) or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any third party financial institution that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard and Poor’s Financial Services LLC. or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed A3 by Dealer (▇▇▇▇▇’▇ Investor Service, Inc. or its guarantor)successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any Transfer (I) such a Transfer shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such Transfer; (II) at the time of such Transfer either (i) each of Dealer and the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Revenue Code or (ii) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Revenue Code; and (III) after any such Transfer (a) Counterparty will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), as a result of such transfer, to pay any withholding or deduction made by the transferee an amount or assignee as a result of any Tax, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement greater as well as such withholding or deduction) an amount or a number of Shares, as applicable, lower than the amountamount or the number of Shares, if anyas applicable, that Counterparty Dealer would have been required to pay or deliver to Dealer Counterparty in the absence of such transfer.Transfer (except to the extent such lower amount or number results from a change in law after the date of such Transfer), and (b) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions: 14 Insert the number of Shares outstanding that would cause Dealer’s current position in the Shares underlying the Transaction (including the number of Shares underlying any legal additional transaction if the greenshoe is exercised in full, and regulatory requirements relevant any Shares under pre-existing call option transactions with Counterparty, subject to any unwind thereof) to increase by 0.5%. To be based on Dealer with highest applicable percentage. 15 Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Shares underlying the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty, subject to any unwind thereof) to increase by a further 0.5% from the threshold for the first Repurchase Notice. To be based on Dealer with highest applicable percentage.
(iiiA) the transferee being With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(o) or 9(t) of this Confirmation;
(B) Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended) (the “Code”);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company (provided that in connection with any transfer pursuant to this clause (A)(2), the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document and such guarantor shall be a Credit Support Provider in relation to such transferee under the Agreement), or (B) to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantor’ssuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or whose obligations would be guaranteed ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty and Dealer; provided thatthat either (1) the transferee or assignee is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (2) the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code. After such transfer or assignment, in Dealer’s reasonable determination, (1) Counterparty will not be requirednot, as a result of such transfertransfer or assignment, to pay receive from the transferee or assignee an amount under Section 2(d)(i)(4) of the Agreement greater less than the amount, if any, amount that Counterparty would have been required to pay to received from Dealer in the absence of such transfertransfer or assignment (and, for the avoidance of doubt, as a condition to any transfer or assignment contemplated by this paragraph, such transferee or assignee shall agree to pay such additional amounts, if any, as necessary to result in Counterparty’s receiving the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment), except to the extent resulting from a Change in Law occurring after the date of the transfer and/or assignment and (2) Dealer shall cause any transferee or assignee to make such Payee Tax Representations to make any necessary determination pursuant to clause (1) of this sentence. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date), or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
Appears in 1 contract
Transfer or Assignment. Counterparty Neither party may transfer any of its rights or obligations hereunder and under the Transaction and Agreement without the prior written consent of the non-transferring party (such consent not to be unreasonably withheld); provided that, subject to applicable law, Dealer may transfer or assign without any consent of Counterparty its rights and obligations hereunder, in whole or in part, to any of its affiliates of credit quality at least equivalent to that of Dealer as of the Trade Date or to any other of its affiliates provided the following conditions are satisfied: that Counterparty shall receive a full guaranty of such affiliate’s obligations from Dealer in form and substance reasonably satisfactory to Counterparty if (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment and (viii) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition as a result of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may such transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determinationassignment, Counterparty will not be required, as a result of such transfer, required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment. Except for the transfer or assignment contemplated in the proviso to the first sentence of this paragraph 8(g), in the case of a transfer or assignment by Counterparty or Dealer of its rights and obligations hereunder and under the Agreement, in whole or in part (any Options so transferred or assigned, the “Transfer Options”), to any party, withholding of consent by the other party (the “Remaining Party”) shall not be considered unreasonable if such transfer or assignment does not meet the following reasonable conditions that the Remaining Party may impose: (i) with respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to paragraph 8(b) (“Repurchase Notices”) or any obligations under paragraph 2 regarding Extraordinary Events or paragraph 8(m) (“Registration”) of this Confirmation; (ii) any Transfer Options shall only be transferred or assigned to a third party that is a U.S. person (as defined in the Internal Revenue Code of 1986, as amended); (iii) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such transferee (including, but not limited to, undertakings with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of the Remaining Party, will not expose the Remaining Party to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such transferee and the transferor as are reasonably requested and reasonably satisfactory to the Remaining Party; (iv) the Remaining Party will not, as a result of such transfer or assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that the Remaining Party would have been required to pay to the transferor in the absence of such transfer or assignment; (v) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment; (vi) without limiting the generality of clause (ii), the transferor shall have caused the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by the Remaining Party to permit the Remaining Party to determine that results described in clauses (iv) and (v) will not occur upon or after such transfer or assignment; and (vii) the transferor shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by the Remaining Party in connection with such transfer or assignment. Notwithstanding the foregoing, at any time at which a transaction proposed to be entered into by Dealer would cause the Articles Ownership Percentage to exceed 4.9%, unless Counterparty provides an acknowledgment to Dealer to the effect that the Shares owned or controlled by Dealer or any of its affiliates will not be deemed as owned or controlled by an “Alien” (as defined in Article Twelve Section 6 of Counterparty’s Certificate of Incorporation), Dealer may (or shall, if requested by Counterparty) transfer or assign to a third party such portion of the Transaction that would otherwise cause the Articles Ownership Percentage to exceed 4.9% (it being understood and agreed that Dealer would make such a transfer or assignment to (a) one of its U.S. affiliates, if, in Counterparty’s view, such a transfer or assignment would result in the Shares owned or controlled by such U.S. affiliates not being owned or controlled by an “Alien” for purposes of Article Twelve of Counterparty’s Certificate of Incorporation) or (b) unless otherwise consented by Counterparty, to a third party who is not an “Alien” for purposes of Article Twelve of Counterparty’s Certificate of Incorporation, if the transfer or assignment would otherwise result in such Shares deemed owned or controlled by an “Alien” for purposes of Article Twelve of Counterparty’s Certificate of Incorporation); provided further that if Dealer is unable to effect a transfer or assignment to a third party after its commercially reasonable efforts on pricing terms reasonably acceptable to Dealer (or to one of its U.S. affiliates, if, in Counterparty’s view, such a transfer or assignment would result in the Shares owned or controlled by such U.S. affiliates not being owned or controlled by an “Alien” for purposes of Article Twelve of Counterparty’s Articles of Incorporation) such that the Articles Ownership Percentage does not exceed 4.9%, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Articles Terminated Portion”) of the Transaction, such that the Articles Ownership Percentage following such partial termination will be equal to 4.9%. Notwithstanding the foregoing, at any time at which (1) the Option Equity Percentage exceeds 9.0% or (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any relevant state corporate law or any state or federal bank holding company or banking laws, or other federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that, in the good faith determination of the relevant Dealer Person, would give rise to materially burdensome reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws (including, without limitation, “interested stockholder” or “acquiring person” status under Section 203 of the Delaware General Corporation Law, but excluding any report or filing required pursuant to Section 13 of the Exchange Act and the rules promulgated thereunder) and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1.0% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”) and Dealer is unable, after commercially reasonable efforts, to eliminate such Excess Ownership Position or effect a transfer or assignment to a third party with a rating (or whose guarantor has a rating) for its long term, unsecured and unsubordinated indebtedness at least equal to that of Dealer as of the Trade Date on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Reporting Terminated Portion”) of the Transaction, such that an Excess Ownership Position no longer exists. In the event that Dealer so designates an Early Termination Date with respect to an Articles Terminated Portion or a Reporting Terminated Portion, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the Articles Terminated Portion or the Reporting Terminated Portion, as the case may be, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such Transaction shall be the only Terminated Transaction (and, for the avoidance of doubt, the provisions of paragraph 8(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence). The “Articles Ownership Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and its affiliates “own or control” (within the meaning of Article 12 Section 2 of Counterparty’s Certificate of Incorporation) on such day, and (B) the denominator of which is the number of Shares outstanding on such day.
Appears in 1 contract
Sources: Additional Call Option Transaction (Hornbeck Offshore Services Inc /La)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) of this Confirmation or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested by and reasonably satisfactory to Dealer;
(D) Dealer will not be required(including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment;
(E) No Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide an IRS Form W-9 and such other tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld) to any other recognized dealer in transactions of the same type as the Transaction with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard & Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that Dealer may transfer or assign pursuant to this paragraph only if (A) either (i) the transferee or assignee is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or (ii) the transfer or assignment does not otherwise constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code, (vB) thatCounterparty will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in Dealer’s reasonable determinationconnection with such transfer or assignment), as a result of any withholding or deduction made by the transferee or assignee as a result of any Tax, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as such withholding or deduction) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfer or assignment, except to the extent resulting from a Change in Law occurring after the date of the transfer and/or assignment and (C) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment. If at any time at which (viA) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under Section 16 Percentage exceeds 8.5%, (B) the provisions set forth under Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionExcess Ownership Position”), Dealer may is unable after using its commercially reasonable efforts to effect a transfer or assign all or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at any time without the consent Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of Counterparty the Transaction, a payment shall be made pursuant to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) 6 of the Agreement greater than as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the amountTransaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if any, that Counterparty would have been required to pay to Dealer in was not the absence of such transfer.Affected Party). The “
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations (if any) and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) or any obligations under Section 10(o) or 10(t) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to applicable securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment, nor receive from the transferee or assignee on any payment date an amount (vafter taking into account any amounts payable under Section 2(d)(i)(4) that, of the Agreement as well as any applicable withholding) that is less than the amount that Dealer would have received from Counterparty in Dealer’s reasonable determination, no the absence of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (viE) that will not occur upon or after such transfer or assignment; and
(G) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all commercially reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate or branch of Dealer (1) that has a rating for its affiliates long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided thatparent, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.or
Appears in 1 contract
Transfer or Assignment. Counterparty or Parent may not transfer any of its rights or obligations under the this Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions JPMorgan. JPMorgan may, without Counterparty’s and documentation reasonably satisfactory to Dealer in connection with such transferParent’s consent, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or any part of its rights or obligations under this Transaction to any third party (the “Transferee”) with a rating for its long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (i) the credit rating of JPMorgan at the time of the transfer and (ii) A- by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute agency rating mutually agreed by Counterparty and JPMorgan (the “Minimum Agency Credit Rating”); provided that the Transferee agrees not to transfer or assign all or any part of its rights or obligations under such transferred or assigned portion of this Transaction (the “Transferred Transaction”) to any third party unless such third party has a rating for its Capped Note Hedging Units hereunder long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (i) the credit rating of the Transferee at the time of the transfer and (ii) the Minimum Agency Credit Rating; and provided further that the Transaction will not, at the time of transfer, exceed the Threshold Value (as defined below) with respect to the Transferee and such Transferee agrees (i) to comply with Section 9(aa) of this Confirmation with respect to its securities and (ii) not to transfer or assign all or any portion of the Transferred Transaction to any other third party unless such third party agrees to comply with Section 9(aa) of this Confirmation with respect to its securities (it being understood that all references therein to JPMorgan shall instead refer to such Transferee or such subsequent third party, as applicable). If after JPMorgan’s commercially reasonable efforts, JPMorgan is unable to effect such a transfer or assignment on pricing terms reasonably acceptable to JPMorgan and within a time without period reasonably acceptable to JPMorgan of a sufficient number of Options to reduce (i) the consent aggregate “beneficial ownership” (within the meaning of Counterparty to Section 13 of the Exchange Act and rules promulgated thereunder) of JPMorgan and any of its affiliates with which it is required to aggregate “beneficial ownership” under Section 13 of the Exchange Act and rules promulgated thereunder (“JPMorgan Group”) to 7.5% of Parent’s outstanding Shares or less, (ii) the Option Equity Percentage to 6.5% or less, (iii) ▇.▇. ▇▇▇▇▇▇ Chase & Co.’s (“Bank”) Beneficial Ownership or Constructive Ownership (as such terms are defined in the Charter) of Common Stock (as such term is defined in the Charter) to 8.0% or less or (iv) the percentage of the total vote or the total value of JPMorgan’s securities that this Transaction represents to 9.5% or less, JPMorgan may designate any Exchange Business Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of this Transaction, such that (i) the JPMorgan Group’s “beneficial ownership” following such partial termination will be equal to or less than 7.5%, (ii) the Option Equity Percentage following such partial termination will be equal to or less than 6.5%, (iii) Bank’s Beneficial Ownership or Constructive Ownership (as such terms are defined in the Charter) of Common Stock (as such term is defined in the Charter) following such partial termination will be equal to or less than 8.0% or (iv) the percentage of the total vote or the total value of JPMorgan’s securities that this Transaction represents to or less than 9.5%. If the Waiver terminates or ceases to be valid, binding or enforceable against Counterparty JPMorgan may designate any Exchange Business Day as an Early Termination Date with respect to all or a 100% owned direct portion of this Transaction. Solely for purposes of this subsection, following receipt of any Repurchase Notice or indirect subsidiary Exchange Rate Adjustment Notice, (i) JPMorgan Group’s “beneficial ownership” (within the meaning of DealerSection 13 of the Exchange Act and rules promulgated thereunder) with respect to Shares, (ii) the Options Equity Percentage and (iii) Bank’s ultimate parent company and has an equal Beneficial Ownership or better creditworthiness than Dealer Constructive Ownership (or its guarantor’sas such terms are defined in the Charter) with respect to the Common Stock (as such term is defined in the Charter), as the case may be, shall incorporate the deemed effect of the relevant Share repurchase (in the case of a Repurchase Notice) or whose obligations would New Exchange Rate (in the case of an Exchange Rate Adjustment Notice). In the event that JPMorgan so designates an Early Termination Date with respect to a portion of this Transaction, a payment shall be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, made pursuant to pay the transferee an amount under Section 2(d)(i)(4) 6 of the Agreement greater than as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the amountTerminated Portion, (ii) Counterparty shall be the sole Affected Party with respect to such partial termination and (iii) such Transaction shall be the only Terminated Transaction (and, for the avoidance of doubt, the provisions of Section 9(q) shall apply to any amount that is payable by JPMorgan to Counterparty pursuant to this sentence as if anyCounterparty was not the Affected Party). Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing JPMorgan to purchase, that sell, receive or deliver any shares or other securities to or from Counterparty, JPMorgan may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform JPMorgan’s obligations in respect of this Transaction and any such designee may assume such obligations. JPMorgan shall be discharged of its obligations to Counterparty would have been required to pay to Dealer in the absence extent of any such transferperformance.
Appears in 1 contract
Transfer or Assignment. Counterparty may not transfer any of its rights or obligations under the this Transaction without the prior written consent of Dealer provided BofA, except for the following conditions are satisfied: assignment to the Trust described above. Notwithstanding anything to the contrary in the Agreement, BofA may transfer or assign its rights or obligations under this Transaction, in whole or in part, without the consent of Counterparty, to either (i) any of BofA’s affiliates, provided that the receipt obligations of such affiliate hereunder and under the Agreement are wholly and unconditionally guaranteed, prior to any transfer or assignment, by Dealer of opinions and documentation BofA in a form reasonably satisfactory acceptable to Dealer in connection with such transfer, the Trust or (ii) such notwithstanding clause (i), any of BofA’s affiliates or any party specified on Schedule 1 hereto with a Credit Rating (as defined herein) that is, at the time of the relevant transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealeror assignment, (iiia) A+ or higher by S&P or (b) Aa3 or higher by M▇▇▇▇’▇; provided, that any such transferee or assignee shall be subject to the requirements (i) to make the representation set forth in Section 7(e) hereof and (ii) to deliver any Tax forms reasonably requested by Counterparty; provided, also, that if such transferee being or assignee is a United States person Broker (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(43(a)(4) of the Agreement greater than Exchange Act) or a Dealer (as defined in 3(a)(5) of the amountExchange Act), if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer BofA may only transfer or assign all rights or a portion of its Capped Note Hedging Units hereunder at any time without obligations under this Transaction to such transferee or assignee with the prior written consent of Counterparty and, prior to the Assignment Effective Date, the FCR and C&D (as defined below), such consent not to be unreasonably withheld. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing BofA to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, BofA may designate any of its affiliates that is a 100% owned direct (the “Designee”) to purchase, sell, receive or indirect subsidiary deliver such Shares or other securities and otherwise to perform BofA’s obligations in respect of Dealer’s ultimate parent company this Transaction, and has an equal or better creditworthiness than Dealer (or Designee may assume such obligations. If the Designee shall have performed the obligations of BofA hereunder, then BofA shall be discharged of its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, to Counterparty will not be required, as a result solely to the extent of any such transfer, to pay the transferee an amount under Section 2(d)(i)(4) performance. For purposes of the Agreement greater than foregoing, the amount“Credit Rating” of a party means the rating of a party assigned by either S&P or M▇▇▇▇’▇ to such party’s long term, if any, that Counterparty would have been required to pay to Dealer in the absence of such transferunsecured and unsubordinated indebtedness or deposits.
Appears in 1 contract
Sources: Confirmation (Owens Corning/Fibreboard Asbestos Personal Injury Trust)
Transfer or Assignment. Counterparty (i) Company may not transfer or assign any of its rights or obligations hereunder without the prior written consent of Dealer.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without the prior written consent Company’s consent, to any affiliate or branch of Dealer or (B) with Company’s consent (such consent not to be unreasonably withheld) to any internationally recognized bank, any fund or any asset manager; provided the following conditions are satisfied: (i) the receipt by Dealer that no Event of opinions and documentation reasonably satisfactory to Dealer in connection with such transferDefault, (ii) such transfer being effected on terms reasonably satisfactory to Dealer Potential Event of Default or Termination Event with respect to any legal and regulatory requirements relevant which Dealer is the Defaulting Party or an Affected Party, as the case may be, exists or will occur as a result of such transfer or assignment pursuant to Dealerclause (A) or (B) of this paragraph, (iii) as the transferee being a United States person (as defined in case may be; provided, further, that under the Code)applicable law effective on the date of such transfer or assignment, (iv) that, in Dealer’s reasonable determination, Dealer at the time of such assignment or transfer Company will not be requirednot, as a result of such transfertransfer or assignment, either be required to pay (including a payment in kind) the transferee or assignee on any payment or settlement date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty Company would have been required to pay to Dealer in the absence of such transfer.transfer or assignment. Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Company to permit Company to determine that the events described in the preceding proviso shall not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Warrant Equity Percentage exceeds 14.5% or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants to a third party in accordance with the terms hereof and on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and applied in a non-discriminatory manner, including but not limited to, the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer or assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay or deliver to the transferee or assignee on any payment date or delivery date an amount or number of Shares, as applicable, (after accounting for amounts payable by Dealer to the transferee or assignee under Section 2(d)(i)(4) of the Agreement Agreement) greater than the amountamount or number of Shares, if anyas applicable, that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer or assignment and (2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment (vafter accounting for amounts payable by the transferee or assignee to Dealer under Section 2(d)(i)(4) of the Agreement on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), as well as any withholding or deduction of Tax from the payment or delivery);
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide a properly executed IRS Form W-9 and any other such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that the results described in clause (D) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement). If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position would no longer exist. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the
Appears in 1 contract
Sources: Call Option Transaction (Arrowhead Pharmaceuticals, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable United States and Jersey securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable United States and other securities laws) and execution of any documentation and delivery of legal opinions with respect to United States and other securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not, as a result of such transfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any federal, state or local (including U.S. and any non-U.S. jurisdiction’s) law, rule (including, without limitation, any of the AIM Rules for Companies), regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in (ii), (iii)(1) and (iii)(2) of this paragraph will not occur upon or after the transfer and assignment.
Appears in 1 contract
Sources: Call Option Transaction (Caledonia Mining Corp PLC)
Transfer or Assignment. Counterparty Company may not transfer any of its rights or obligations under the this Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” hereinBear Stearns. In addition, Dealer Bear Stearns may transfer or assign all or any p▇▇▇▇▇▇ of its ▇▇▇▇▇▇ or obligations under this Transaction without consent of the Company. If Bear Stearns, in its sole discretion, determines that its "ben▇▇▇▇▇▇▇ ownership" (within the meaning of Section 16 of the Exchange Act and rules promulgated thereunder) exceeds 8 % or more of the Company's outstanding Shares and, in its sole discretion, Bear Stearns is unable after its commercially reasonable effor▇▇ ▇▇ ▇ffect a transfer or assignment on pricing terms and in a time period reasonably acceptable to Bear Stearns that would reduce its "beneficial ownership" to 7.5 %, Bear Stearns may designate any Exchange Business Day as an Early ▇▇▇▇ination Date with respect to a portion (the "Terminated Portion") of this Transaction, such that the its "beneficial ownership" following such partial termination will be equal to or less than 8%. In the event that Bear Stearns so designates an Early Termination Date with resp▇▇▇ ▇▇ a portion of its Capped Note Hedging Units hereunder at this Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Warrants equal to the Terminated Portion, (ii) the Company and Bear Stearns shall both be Affected Parties with respect to such ▇▇▇▇ial termination and (iii) such Transaction shall be the only Terminated Transaction. For the avoidance of doubt, if Bear Stearns assigns or terminates any time without Warrants hereunder, eac▇ ▇▇▇▇▇ Number of Warrants not previously settled shall be reduced proportionally, as calculated by the consent of Counterparty Calculation Agent. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Bear Stearns to purchase, sell, receive or deliver any shares or ▇▇▇▇r securities to or from Company, Bear Stearns may designate any of its affiliates that is a 100% owned direct to purchase, ▇▇▇▇, ▇eceive or indirect subsidiary deliver such shares or other securities and otherwise to perform Bear Stearns's obligations in respect of Dealer’s ultimate parent company this Transaction and has an equal or better creditworthiness than Dealer (or ▇▇▇ ▇▇▇▇ designee may assume such obligations. Bear Stearns shall be discharged of its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result to Company ▇▇ ▇▇▇ extent of any such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transferperformance.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(o) or 9(t) of this Confirmation; 15 Insert the number of Shares outstanding that would cause Dealer’s current position in the Shares underlying the Transaction (including the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty, subject to any unwind thereof) to increase by 0.5%. To be based on Dealer with highest applicable percentage. 16 Insert the number of Shares that, if repurchased, would cause Dealer’s current position in the Shares underlying the Transaction (iiiincluding the number of Shares underlying any additional transaction if the greenshoe is exercised in full, and any Shares under pre-existing call option transactions with Counterparty, subject to any unwind thereof) to increase by a further 0.5% from the transferee being threshold for the first Repurchase Notice. To be based on Dealer with highest applicable percentage.
(B) Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended) (the “Code”);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer or assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company (provided that in connection with any transfer pursuant to this clause (A)(2), the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document and such guarantor shall be a Credit Support Provider in relation to such transferee under the Agreement), or (B) to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty and Dealer; provided thatthat either (1) the transferee or assignee is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (2) the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; provided further that Dealer shall provide written notice to Counterparty prior to such transfer. After such transfer or assignment, in Dealer’s reasonable determination, (1) Counterparty will not be requirednot, as a result of such transfertransfer or assignment, to pay receive from the transferee or assignee an amount (after giving effect to amounts payable under Section 2(d)(i)(4) of the Agreement greater and any associated withholding tax) less than the amount, if any, amount that Counterparty would have been required to pay to received from Dealer in the absence of such transfertransfer or assignment (and, for the avoidance of doubt, as a condition to any transfer or assignment contemplated by this paragraph, such transferee or assignee shall agree to pay such additional amounts, if any, as necessary to result in Counterparty’s receiving the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment), except to the extent resulting from a Change in Law occurring after the date of the transfer and/or assignment and (2) Dealer shall cause any transferee or assignee to make such Payee Tax Representations to make any necessary determination pursuant to clause (1) of this sentence. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date), or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended(the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) As of the date of such transfer or assignment, and giving effect thereto, (x) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, and (vy) thatDealer will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount (taking into account any additional amounts paid under Section 2(d)(i)(4) of the Agreement) that is less than the amount that Dealer would have received from Counterparty in Dealer’s reasonable determination, no the absence of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable out-of-pocket costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates rights or obligations under the Transaction with Counterparty’s prior written consent; provided Dealer may, without Counterparty’s consent, transfer or assign all, but not less than all, of its rights or obligations under the Transaction to any Affiliate of Dealer (i) that is or at the time of such transfer or assignment will be a 100% owned direct nationally recognized dealer in equity derivatives similar to this Transaction and (ii) (x) that has a long-term issuer rating at the time of such transfer or indirect subsidiary assignment that is equal to or better than Dealer’s (or, solely if Dealer’s obligations under this Confirmation are guaranteed by its ultimate parent, its ultimate parent’s) credit rating at the time of such transfer or assignment and (y) solely if Dealer’s obligations under this Confirmation are guaranteed and the transferee is not Dealer’s ultimate parent company and has an equal or better creditworthiness than whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer (generally for similar transactions, by Dealer or its guarantor’sultimate parent, if the following conditions are satisfied (the “Transfer Conditions”): (1) the transferee agrees in writing with Dealer to be bound by the terms of this Confirmation with respect to the transferred obligations; (2) as of the date of such transfer or whose obligations would be guaranteed by Dealer assignment, and giving effect thereto, (or its guarantor); provided that, in Dealer’s reasonable determination, x) Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer or assignment and (y) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount (taking into account any additional amounts paid under Section 2(d)(i)(4) of the Agreement) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment; (3) no Event of Default where Dealer is the Defaulting Party or Termination Event where Dealer is the sole Affected Party has occurred and is continuing at the time of the transfer., and, as of the date of such transfer or assignment, no Event of Default or Termination Event will occur with respect to Counterparty, Dealer or the transferee as a result of such transfer; (4) as of the date of such transfer or assignment, if to a transferee incorporated or organized in a jurisdiction other than the United States [or][,] United Kingdom [or [_____]]5, after giving effect to such transfer, no material adverse legal or regulatory consequence shall result to Dealer, Counterparty or the transferee as a result of such transfer and (5) Dealer shall have provided prompt written notice to Counterparty of such transfer. Any transfer not in compliance with the Transfer Conditions will be void. Without limiting the foregoing, no transfer or assignment by Dealer shall be permitted hereunder that would result in the occurrence of an Event of Default, Potential Event of Default or Termination Event. If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. Dealer shall notify Counterparty of an Excess Ownership Position with respect to which it intends to seek a transfer or assignment as soon as reasonably practicable after becoming aware of such Excess Ownership Position. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to 5 Insert any other applicable Dealer jurisdiction
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by M▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and or assignment, (viii) that such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code, (iii)(1) Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 17.0%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer Dealer; provided that the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transfertransfer (including, without limitation, any account opening documentation and any documentation with respect to “know your customer” and related requirements), (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time (x) without the consent of Counterparty Counterparty, to any of its affiliates (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer (provided that, in connection with any assignment or transfer pursuant to clause (x) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (y) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any third-party financial institution that is a 100% owned direct recognized dealer in the market for U.S. corporate equity derivatives and that has a rating (or indirect subsidiary whose guarantor has a rating) for its long term, unsecured and unsubordinated indebtedness of Dealer’s ultimate parent company and has an equal A+ or better creditworthiness than Dealer (by Standard & Poor’s Ratings Services or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed A1 or better by Dealer (▇▇▇▇▇’▇ Investors Service, Inc. or its guarantor)successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute agency rating mutually agreed in good faith by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (x) or (y) above, (I) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment and (II) (a) such transfer or assignment shall not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Internal Revenue Code of 1986, as amended, (b) Counterparty will not be requiredreceive from the transferee or assignee on any payment date or delivery date an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfer or assignment, (c) Counterparty will not, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, and (d) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that events described in clauses (II)(b) and (c) of this proviso will not occur upon or after such transfer or assignment. If, as determined in Dealer’s sole discretion, (a) at any time (1) the Section 16 Equity Percentage exceeds 9% or (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any federal, state or local (including non-U.S.) laws, rules, regulations or regulatory orders, or any organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership, or could be reasonably viewed as meeting any of the foregoing, in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration,
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) or any obligations under Section 10(o) or 10(t) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested by, and reasonably satisfactory to, Dealer;
(1) Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee (or deliver to the transferee) on any payment date or delivery date an amount or number of Shares, as applicable, under Section 2(d)(i)(4) of the Agreement greater than the amountamount or number of Shares, if anyas applicable, that Dealer would have been required to pay (or deliver, as the case may be) to Counterparty in the absence of such transfertransfer or assignment, and (v2) thatDealer will not, as a result of such transfer and assignment, receive from the transferee on any payment date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment) an amount that is less than the amount that Dealer would have received from Counterparty in Dealer’s reasonable determination, no the absence of such transfer and assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time rights or obligations under the Transaction (A) without the Counterparty’s consent of Counterparty (but with prior written notice to Counterparty), to any affiliate of its affiliates Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company (provided that in connection with any assignment or transfer pursuant to clause (A)(1) hereof, a failure by Dealer to give a prior written notice thereof shall not affect the validity of such transfer or assignment, and in connection with any assignment or transfer pursuant to clause (A)(2) hereof, the guarantee of any guarantor of the relevant transferee’s obligations under the Transaction shall constitute a Credit Support Document under the Agreement), or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives and that has an a long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed A3 by Dealer (▇▇▇▇▇’▇ Investor Service, Inc. or its guarantor)successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, (I) such a transfer or assignment shall not occur unless an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment; (II) at the time of such transfer or assignment either (i) each Dealer and the transferee in any such transfer or assignment is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (ii) the transfer or assignment does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and (III) after any such transfer or assignment (a) Counterparty will not be requirednot, as a result of such transfertransfer or assignment, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement as well as any withholding or deduction of Tax from the payment or delivery) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfer or assignment, (b) Counterparty will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, and (c) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to make any necessary determinations pursuant to clauses (III)(a) and (b) of this proviso. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option Equity Percentage exceeds 15.0%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination, (3) the Terminated Portion were the sole Affected Transaction and (4) Dealer were the party entitled to designate an Early Termination Date
Appears in 1 contract
Sources: Call Option Transaction (Aerie Pharmaceuticals Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer; 17 Include if dealer is a party to existing bond hedge transactions.
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate of Dealer (1) that has a rating for its affiliates long term, unsecured and unsubordinated indebtedness that is a 100% owned direct equal to or indirect subsidiary of better than Dealer’s ultimate parent company credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or [Name of Dealer parent], or (B) to any other third party with a rating for its long term, unsecured and has an unsubordinated indebtedness equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or Baa 1 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty and Dealer; provided thatthat (x) the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code, in Dealer’s reasonable determination(y) after any such Transfer, Counterparty will not be required(or Dealer will cause the transferee or assignee to agree that Counterparty will not), as a result of such transfer, to pay any withholding or deduction made by the transferee an amount or assignee as a result of any Tax, receive from the transferee or assignee on any payment date or delivery date (after accounting for amounts paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement greater as well as such withholding or deduction) an amount or a number of Shares, as applicable, lower than the amountamount or the number of Shares, if anyas applicable, that Counterparty Dealer would have been required to pay or deliver to Dealer Counterparty in the absence of such transfer.Transfer (except to the extent such lower amount or number results from a Change in Tax Law after the date of such Transfer) and (z) Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may reasonably be requested by Counterparty to permit Counterparty to make any necessary determinations pursuant to clause (y) of this proviso; and provided further that Dealer shall promptly provide written notice to Counterparty following any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 7.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge
Appears in 1 contract
Sources: Call Option Transaction (Ionis Pharmaceuticals Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Either of Counterparty and Parent shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, neither Counterparty nor Parent shall be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s , will not expose Dealer to material risks under applicable securities laws) and execution of any reasonable determinationand necessary documentation and delivery of reasonable and customary legal opinions with respect to securities laws and other matters by such third party and Counterparty or Parent, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment and after giving effect thereto, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty or Parent in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event with respect to Counterparty will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue and Parent shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Each of Counterparty and Parent shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may (A) without Counterparty’s or Parent’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer, or (B) in consultation with Counterparty and/or Parent, and with Counterparty’s and/or Parent’s prior written consent (which consent not to be delayed or unreasonably withheld), transfer or assign all or any part of its affiliates that is rights or obligations under the Transaction to any other third party with a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an long-term issuer rating equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty, Parent and Dealer; provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.:
Appears in 1 contract
Sources: Additional Call Option Transaction (Nabors Industries LTD)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty or the Issuer, as applicable, shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(o) or 9(u) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on the date of such transfer or assignment, Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee or assignee on any payment date an amount or number of Shares under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount or number of Shares that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment;
(E) Dealer will not, as a result of any withholding or deduction made by the transferee or assignee as a result of any Tax, receive from the transferee or assignee on any payment date an amount or number of Shares (vtaking into account any additional amounts paid under Section 2(d)(i)(4) thatof the Agreement) that is less than the amount or the number of Shares the Dealer would have received from Counterparty in the absence of such transfer or assignment;
(F) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(G) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(H) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights or obligations under the Transaction (A) to any affiliate of Dealer whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer Parent, or (B) to any other wholly owned direct or indirect subsidiary or branch of Dealer Parent with a long-term issuer rating equal to or better than (1) the credit rating of Dealer at the time of the transfer or (2) A- by S&P Global Ratings or its successor (“S&P”), or A3 by M▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer’s reasonable determination; provided that in the case of any transfer or assignment described in clause (A) or (B) above, no Event of Default, Potential Event of Default or Termination Event with respect to which Dealer is the Defaulting Party or an Affected Party, as the case may be, exists or will occur as a result of such transfer and or assignment; provided, further, that under the applicable law effective on the date of such transfer or assignment, (vi1) that at the time of such assignment or transfer Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, either (I) be required to pay (including a payment in kind) the transferee or assignee on any payment or settlement date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, or (II) receive (including a payment in kind) from the transferee or assignee on any payment or settlement date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment; and (2) such transfer or assignment does not cause a deemed exchange for Counterparty of the Transaction under Section 1001 of the Code. Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the events described in the preceding proviso shall not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Option Equity Percentage exceeds 14.5% or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law or any other law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its good faith, reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in good faith and in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
Appears in 1 contract
Transfer or Assignment. Counterparty Neither party may transfer any of its rights or obligations under the this Transaction without the prior written consent of Dealer the non-transferring party; provided that if, as determined at JPMorgan’s/MSIL’s sole discretion, its “beneficial ownership” (within the meaning of Section 16 of the Exchange Act and rules promulgated thereunder) exceeds 8% of Counterparty’s outstanding Shares, JPMorgan may transfer or assign a number of Options sufficient to reduce such “beneficial ownership” to 7.5% to any third party with a rating for its long term, unsecured and unsubordinated indebtedness of A+ or better by Standard and Poor’s Rating Group, Inc. or its successor (“S&P”), or A1 or better by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute agency rating mutually agreed by Counterparty and JPMorgan. If, in the discretion of JPMorgan, JPMorgan is unable to effect such transfer or assignment after its commercially reasonable efforts on pricing terms reasonably acceptable to JPMorgan and within a time period reasonably acceptable to JPMorgan, JPMorgan may designate any Exchange Business Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of this Transaction, such that its “beneficial ownership” following conditions are satisfied: such partial termination will be equal to or less than 8%. In the event that JPMorgan so designates an Early Termination Date with respect to a portion of this Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Options equal to the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transferTerminated Portion, (ii) such transfer being effected on terms reasonably satisfactory to Dealer the Counterparty shall be the sole Affected Party with respect to any legal such partial termination and regulatory requirements relevant to Dealer, (iii) such Transaction shall be the transferee being a United States person (as defined only Terminated Transaction. Notwithstanding any other provision in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating this Confirmation to the Convertible Notes and will continue contrary requiring or allowing JPMorgan to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionpurchase, Dealer sell, receive or deliver any shares or other securities to or from Counterparty, JPMorgan may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to designate any of its affiliates that is a 100% owned direct to purchase, sell, receive or indirect subsidiary deliver such shares or other securities and otherwise to perform JPMorgan’s obligations in respect of Dealer’s ultimate parent company this Transaction and has an equal or better creditworthiness than Dealer (or any such designee may assume such obligations. JPMorgan shall be discharged of its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, to Counterparty will not be required, as a result to the extent of any such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transferperformance.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty or the Issuer, as applicable, shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(o) or 9(u) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on the date of such transfer or assignment, Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee or assignee on any payment date an amount or number of Shares under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount or number of Shares that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment;
(E) Dealer will not, as a result of any withholding or deduction made by the transferee or assignee as a result of any Tax, receive from the transferee or assignee on any payment date an amount or number of Shares (vtaking into account any additional amounts paid under Section 2(d)(i)(4) thatof the Agreement) that is less than the amount or the number of Shares the Dealer would have received from Counterparty in the absence of such transfer or assignment;
(F) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(G) Without limiting the generality of clause (B), Counterparty shall cause the transferee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(H) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign all or any part of its rights or obligations under the Transaction (A) to any affiliate of Dealer whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer Parent, or (B) to any other wholly owned direct or indirect subsidiary or branch of Dealer Parent with a long-term issuer rating equal to or better than (1) the credit rating of Dealer at the time of the transfer or (2) A- by S&P Global Ratings or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer’s reasonable determination; provided that in the case of any transfer or assignment described in clause (A) or (B) above, no Event of Default, Potential Event of Default or Termination Event with respect to which Dealer is the Defaulting Party or an Affected Party, as the case may be, exists or will occur as a result of such transfer and or assignment; provided, further, that under the applicable law effective on the date of such transfer or assignment, (vi1) that at the time of such assignment or transfer Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, either (I) be required to pay (including a payment in kind) the transferee or assignee on any payment or settlement date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, or (II) receive (including a payment in kind) from the transferee or assignee on any payment or settlement date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment; and (2) such transfer or assignment does not cause a deemed exchange for Counterparty of the Transaction under Section 1001 of the Code. Dealer shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the events described in the preceding proviso shall not occur upon or after such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Option Equity Percentage exceeds 14.5% or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under Section 203 of the Delaware General Corporation Law or any other law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its good faith, reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in good faith and in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of opinions and documentation reasonably satisfactory to Dealer in connection with the Options hereunder (such transferOptions, (ii) the “Transfer Options”); provided that such transfer being effected on terms reasonably satisfactory or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) with respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Dealer would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment;
(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (B) and (D) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or such transfer or assignment would not result in a taxable exchange from Counterparty’s perspective for U.S. federal income tax purposes, (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty shall be entitled to a payment (including, for the avoidance of doubt, after giving effect to any indemnity to Counterparty provided in connection with such transfer or assignment), on any payment date, that is not less than the payment Counterparty would have received in the absence of such transfer and/or assignment on account of any deduction or withholding for or on account of any Tax (as defined in the Agreement), except to the extent such deduction or withholding is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Dave Inc./De)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealerparagraph 5(e) of this Confirmation, its registration obligations pursuant to paragraph 5(p) of this Confirmation, or its obligation to provide a Notice of Merger Consideration pursuant to paragraph 2 of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all commercially reasonable costs and expenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Notwithstanding any provision of the Agreement to the Convertible Notes contrary, Dealer may, subject to applicable law, freely transfer and will continue to be obligated assign all of its rights and obligations under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer Transaction or assign all or a portion of its Capped Note Hedging Units hereunder at any time the Agreement without the consent of Counterparty Counterparty, (x) to any of its affiliates and (y) solely to the extent required to eliminate an Excess Ownership Position as provided in the immediately succeeding sentence, to any affiliate and/or any other recognized dealer in transactions such as the Transaction, where in the case of both clauses (x) and (y), the assignee shall have a rating (or whose guarantor shall have a rating) for its long term, unsecured and unsubordinated indebtedness of A- or better by Standard & Poor’s Ratings Services or its successor (“S&P”), or A3 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (1) the transferee in any such Transfer is a 100% owned direct “dealer in securities” within the meaning of Section 475(c)(1) of the Code or indirect subsidiary (2) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); Section 1001 of the Code provided that, in Dealer’s reasonable determination, further that Counterparty will not be requirednot, as a result of such transfertransfer and/or assignment, be required under the Agreement or this Confirmation to (i) pay to the transferee or assignee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty it would have been required to pay to Dealer in the absence of such transfer or assignment or (ii) receive from the transferee or assignee an amount less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, in each case based on the circumstances in effect on the date of such transfer. Dealer shall provide Counterparty with written notice of any assignment. If at any time at which (1) the Equity Percentage exceeds 9.0% or (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any relevant state corporate law or state or federal bank holding company or banking laws, or other federal, state or local laws, regulations, regulatory orders or organizational documents or contracts of Counterparty that are applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person or could result in an adverse effect on a Dealer Person, as determined by Dealer in its reasonable discretion, under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1.0% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”) and Dealer is unable, after commercially reasonable efforts, to effect a transfer or assignment on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction pursuant to the preceding sentence such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that an Excess Ownership Position no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Terminated Portion, (y) Counterparty shall be the sole Affected Party with respect to such partial termination and (z) such Transaction shall be the only Terminated Transaction (and, for the avoidance of doubt, the provisions of paragraph 5(n) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence). The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (“Dealer Group”), beneficially own (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares outstanding on such day. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’ obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited to, the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) of this Confirmation or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are reasonably requested by and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer or assignment, (1) be required to pay or deliver to the transferee or assignee on any payment date or delivery date, as applicable, an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfertransfer or assignment or (2) receive from the transferee or assignee on any payment date or delivery date, as applicable, an amount (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer or assignment;
(E) No Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that the results described in clauses (D) and (E) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all commercially reasonable costs and expenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer or Dealer’s ultimate parent, as applicable, generally for similar transactions, by Dealer or Dealer’s ultimate parent or (B) with Counterparty’s prior written consent (such consent not to be unreasonably withheld), to any other recognized dealer in transactions of the same type as the Transaction with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer or assignment and (2) A- by Standard & Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided, however, Dealer may transfer or assign pursuant to this paragraph only if (A) the transferee or assignee is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or such transfer or assignment does not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code, (vB) thatCounterparty shall be entitled to a payment or a delivery, as applicable, on any payment date or delivery date, that is not less than the payment or delivery Counterparty would have received in Dealer’s reasonable determinationthe absence of such transfer or assignment on account of any deduction or withholding under Section 2(d)(i) of the Agreement, except to the extent such deduction or withholding results from a Change in Tax Law occurring after the date of such transfer or assignment, (C) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment and (viD) that Counterparty will continue would not, at the time and as a result of such transfer or assignment, reasonably be expected to be obligated become subject to provide notices hereunder relating any law, regulation or similar requirement to which it would not otherwise have been subject absent such transfer or assignment. If at any time at which (A) the Convertible Notes and will continue to be obligated under Section 16 Percentage exceeds 8.5%, (B) the provisions set forth under Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionExcess Ownership Position”), Dealer may is unable after using its commercially reasonable efforts to effect a transfer or assign all or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) of this Confirmation shall apply to any time without amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the consent Affected Party). Dealer shall notify Counterparty of Counterparty an Excess Ownership Position with respect to which it intends to seek a transfer or assignment as soon as reasonably practicable after becoming aware of such an Excess Ownership Position. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The “Option Equity Percentage” as of any day is the fraction, expressed as a 100% owned direct or indirect subsidiary percentage, (A) the numerator of Dealer’s ultimate parent company which is the sum of (1) the product of the Number of Options and has an equal or better creditworthiness than the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or its guarantor’sany such person, a “Dealer Person”) under any law, rule, regulation, regulatory order or whose obligations would be guaranteed organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (excluding those arising under Section 13 or 16 of the Exchange Act, in each case, as in effect on the Trade Date, the “Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (or its guarantor); provided A) the minimum number of Shares that, in Dealer’s reasonable determinationjudgment based on advice of counsel, Counterparty will not be requiredcould give rise to reporting or registration obligations (except for filings on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Dealer shall provide Counterparty with written notice of any transfer or assignment on the date of or as promptly as practicable after the date of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment.
Appears in 1 contract
Transfer or Assignment. Counterparty The rights and duties under this Confirmation may not be transferred or assigned by any party hereto without the prior written consent of the other party, such consent not to be unreasonably withheld; provided, that Nomura may, without Counterparty’s consent, but with prompt written notice thereof, transfer or assign all or any part of its rights or obligations under the Transaction without the prior written consent to any affiliate of Dealer Nomura; provided the following conditions are satisfied: that (i) under the receipt by Dealer applicable law effective on the date of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealeror assignment, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer Counterparty will not be required, as receive a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater payment that is less than the amount, if any, that Dealer payment Counterparty would have been required to pay to Counterparty received in the absence of such transfertransfer or assignment on account of any deduction or withholding under Section 2(d)(i) of the Agreement, (vii) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (iii) such transferee meets all of Counterparty’s then existing counterparty eligibility requirements, including credit practices and policies, and exposure limits and (viiv) that Counterparty will shall continue to be obligated benefit from a Credit Support Document with respect to provide notices hereunder relating such assignee. If at any time at which (A) the Section 16 Percentage exceeds 9.9%, or (B) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clause (A) or (B), an “Excess Ownership Position”), Nomura is unable after using its commercially reasonable efforts to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may effect a transfer or assign all or assignment of a portion of its Capped Note Hedging Units hereunder at the Transaction to a third party on pricing terms reasonably acceptable to Nomura and within a time period reasonably acceptable to Nomura such that no Excess Ownership Position exists, then Nomura may designate any time without the consent of Counterparty Exchange Business Day as an Early Termination Date with respect to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) portion of the Agreement greater than Transaction (the amount“Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Nomura so designates an Early Termination Date with respect to a portion of the Transaction, a portion of the Shares with respect to the Transaction shall be delivered to Counterparty as if any, that Counterparty would have been required the Early Termination Date was the Valuation Date in respect of a Transaction having terms identical to pay to Dealer in the absence of such transfer.Transaction
Appears in 1 contract
Sources: Otc Equity Prepaid Forward Transaction (GigCapital, Inc.)
Transfer or Assignment. (i) Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions: (A) With respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 9(b) or any obligations under Section 9(o) or 9(t) of this Confirmation; (B) Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended); (C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and
(ii) Dealer may not transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) the receipt by Dealer of opinions and documentation reasonably satisfactory to Dealer in connection with such transferCounterparty, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, except that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (x) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating or a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent or (y) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed) (i) to any financial institution or (ii) solely for the purpose of avoiding an Excess Ownership Position, to any other third party. If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party reasonably acceptable to Counterparty in accordance with the terms hereof on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(m) shall apply to any time without amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the consent Affected Party). The “Section 16 Percentage” as of Counterparty to any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates that is a 100% owned direct or indirect subsidiary any other person subject to aggregation with Dealer for purposes of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount “beneficial ownership” test under Section 2(d)(i)(413 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence meaning of such transfer.Section
Appears in 1 contract
Transfer or Assignment. Counterparty may Notwithstanding any provision of the Agreement to the contrary, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may, subject to applicable law, freely transfer any and assign all of its rights or and obligations under the Transaction without the prior written consent of Dealer provided Counterparty. If, as determined in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ sole discretion, (x) its "beneficial ownership" (within the meaning of Section 16 of the Exchange Act and rules promulgated thereunder) exceeds 8.5% of Counterparty's outstanding Shares and (y) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is unable, after commercially reasonable efforts, to effect a transfer or assignment on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction to reduce such "beneficial ownership" below 8.5%, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the "Terminated Portion") of this Transaction, such that its "beneficial ownership" following conditions are satisfied: such partial termination will be approximately equal to but less than 8.5%. In the event that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ so designates an Early Termination Date with respect to a portion of this Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and a Number of Warrants equal to the receipt by Dealer Terminated Portion (allocated among the Components thereof in the discretion of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer▇▇▇▇▇▇ ▇▇▇▇▇▇▇), (ii) such transfer being effected on terms reasonably satisfactory to Dealer Counterparty shall be the sole Affected Party with respect to any legal such partial termination and regulatory requirements relevant to Dealer, (iii) such Transaction shall be the transferee being a United States person only Terminated Transaction (as defined in and, for the Code)avoidance of doubt, (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” the caption "Alternative Calculations and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at Counterparty Payment on Early Termination and on Certain Extraordinary Events" shall apply to any time without the consent of amount that is payable by Counterparty to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to this sentence). Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to purchase, sell, receive or deliver any shares or other securities to or from Counterparty, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may designate any of its affiliates that is a 100% owned direct to purchase, sell, receive or indirect subsidiary of Dealer’s ultimate parent company deliver such shares or other securities and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose otherwise to perform ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) respect of the Agreement greater than Transaction and any such designee may assume such obligations. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be discharged of its obligations to Counterparty to the amount, if any, that Counterparty would have been required to pay to Dealer in the absence extent of any such transferperformance.
Appears in 1 contract
Sources: Equity Derivatives Confirmation (Molson Coors Brewing Co)
Transfer or Assignment. Counterparty may The rights and obligations of Network and Affiliate under this Agreement shall be binding upon their respective assignees, transferees or successors in interest. This Agreement shall not be assigned or transferred (whether directly or indirectly, or by a transfer any of its rights control or obligations under the Transaction otherwise), in whole or in part, by Affiliate Parent, an Affiliate Subsidiary or a LicenseCo Subsidiary (each, an “Affiliate Party”) without the prior written consent of Dealer provided Network, in the following conditions are satisfied: sole discretion of Network, and any permitted assignment shall not relieve an Affiliate Party of its obligations hereunder. Any purported assignment by an Affiliate Party without such consent shall be null and void and not enforceable against Network and shall be considered a default by such Affiliate Party under this Agreement. Affiliate shall immediately notify Network in writing if any application is made to the FCC pertaining to an assignment or a transfer of control of an Affiliate Party’s license for a Station or any interest therein, except for “short form” assignments or transfers of control made pursuant to Section 73.3540(f) of the FCC’s rules which do not affect the applicability of this Agreement to the applicable Station or Stations (i“Short Form Transfers”). For purposes of this Section 13, a “transfer of control” shall include an Affiliate Party’s relinquishment or return of a Station’s FCC licenses to the government. Network shall have the right to terminate this Agreement, effective upon 30 days’ written notice to Affiliate after notification of any such application (or at any time after it becomes aware of the filing of such application) to which Network did not grant consent as set forth above, regardless as to whether the receipt by Dealer of opinions proposed assignee or transferee agrees to assume such Affiliate Party’s obligations hereunder. Each Affiliate Party agrees that, upon Network’s request, such Affiliate Party shall procure and documentation deliver to Network, in form reasonably satisfactory to Dealer Network, the agreement of the proposed assignee or transferee that, upon consummation of the assignment or transfer of control of a Station’s authorization, the assignee or transferee will assume and perform this Agreement in connection with such transfer, its entirety without limitation of any kind. If Affiliate fails to notify Network of the proposed assignment or transfer of control of a Station’s authorization (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Codeexcept for Short Form Transfers), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result of such transfer, or fails to pay procure the transferee an amount under Section 2(d)(i)(4) agreement of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default proposed assignee or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.in
Appears in 1 contract
Sources: Network Affiliation Agreement (Mediaco Holding Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Mirion Technologies, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty’s consent, to any affiliate or branch of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“▇▇▇▇▇’▇”) or, if either S&P or ▇▇▇▇▇’▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a “dealer in securities” within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfer.transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.5%, (B) the Option
Appears in 1 contract
Sources: Call Option Transaction (DigitalOcean Holdings, Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealerparagraph 5(e) of this Confirmation, its registration obligations pursuant to paragraph 5(p) of this Confirmation, or its obligation to provide a Notice of Merger Consideration pursuant to paragraph 2 of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Code);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all commercially reasonable costs and expenses, including commercially reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Notwithstanding any provision of the Agreement to the Convertible Notes contrary, Dealer may, subject to applicable law, freely transfer and will continue to be obligated assign all of its rights and obligations under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer Transaction or assign all or a portion of its Capped Note Hedging Units hereunder at any time the Agreement without the consent of Counterparty Counterparty, (x) to any of its affiliates and (y) solely to the extent required to eliminate an Excess Ownership Position as provided in the immediately succeeding sentence, to any affiliate and/or any other recognized dealer in transactions such as the Transaction, where in the case of both clauses (x) and (y), the assignee shall have a rating (or whose guarantor shall have a rating) for its long term, unsecured and unsubordinated indebtedness of A- or better by Standard & Poor’s Ratings Services or its successor (“S&P”), or A3 or better by ▇▇▇▇▇’▇ Investors Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (1) the transferee in any such Transfer is a 100% owned direct “dealer in securities” within the meaning of Section 475(c)(1) of the Code or indirect subsidiary (2) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); Section 1001 of the Code provided that, in Dealer’s reasonable determination, further that Counterparty will not be requirednot, as a result of such transfertransfer and/or assignment, be required under the Agreement or this Confirmation to (i) pay to the transferee or assignee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty it would have been required to pay to Dealer in the absence of such transfer or assignment or (ii) receive from the transferee or assignee an amount less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, in each case based on the circumstances in effect on the date of such transfer. Dealer shall provide Counterparty with written notice of any assignment. If at any time at which (1) the Equity Percentage exceeds 9.0% or (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under any relevant state corporate law or state or federal bank holding company or banking laws, or other federal, state or local laws, regulations, regulatory orders or organizational documents or contracts of Counterparty that are applicable to ownership of Shares (“Applicable Laws”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person or could result in an adverse effect on a Dealer Person, as determined by Dealer in its reasonable discretion, under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received minus (y) 1.0% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”) and Dealer is unable, after commercially reasonable efforts, to effect a transfer or assignment on pricing terms and within a time period reasonably acceptable to it of all or a portion of the Transaction pursuant to the preceding sentence such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Trading Day as an Early Termination Date with respect to a portion (the “Terminated Portion”) of the Transaction, such that an Excess Ownership Position no longer exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Terminated Portion, (y) Counterparty shall be the sole Affected Party with respect to such partial termination and (z) such Transaction shall be the only Terminated Transaction (and, for the avoidance of doubt, the provisions of paragraph 5(n) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence). The “Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates subject to aggregation with Dealer, for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer (“Dealer Group”), beneficially own (within the meaning of Section 13 of the Exchange Act) on such day and (B) the denominator of which is the number of Shares outstanding on such day. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’ obligations in respect of the Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.
Appears in 1 contract
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(n) or 9(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment, be required to pay or deliver to the transferee an or assignee on any payment date or delivery date a payment amount or a number of shares under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, payment amount or number of shares that Dealer would have been required to pay or deliver, as applicable, to Counterparty in the absence of such transfer, transfer and assignment except to the extent that the greater payment amount or number of shares is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Counterparty shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all commercially reasonable costs and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, without Counterparty’s consent, transfer or assign (a “Transfer”) all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction (A) to any affiliate or branch of Dealer (1) that has a rating for its affiliates long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a 100% owned direct customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or indirect subsidiary of Dealer’s ultimate parent company parent, or (B) to any other third party with a rating for its long term, unsecured and has an unsubordinated indebtedness equal to or better creditworthiness than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) BBB+ by S&P Global Ratings, a division of S&P Global Inc. or its guarantor’s) successor (“S&P”), or whose obligations would be guaranteed Baa1 by Dealer (▇▇▇▇▇’▇ Investors Service, Inc. or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4successor (“▇▇▇▇▇’▇”) of the Agreement greater than the amountor, if anyeither S&P or ▇▇▇▇▇’▇ ceases to rate such debt, that Counterparty would have been required to pay to Dealer in the absence of such transfer.at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty
Appears in 1 contract
Sources: Call Option Transaction Confirmation (Ligand Pharmaceuticals Inc)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Either of Counterparty and Parent shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, neither Counterparty nor Parent shall be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9.(b) or any obligations under Section 9.(n) or 9.(s) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the CodeInternal Revenue Code of 1986, as amended);
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s , will not expose Dealer to material risks under applicable securities laws) and execution of any reasonable determinationand necessary documentation and delivery of reasonable and customary legal opinions with respect to securities laws and other matters by such third party and Counterparty or Parent, as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer and assignment and after giving effect thereto, be required to pay the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty or Parent in the absence of such transfer, transfer and assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event with respect to Counterparty will not occur as a result of such transfer and assignment;
(viF) that Without limiting the generality of clause (B), Counterparty will continue and Parent shall cause the transferee to be obligated make such Payee Tax Representations and to provide notices hereunder relating such tax documentation as may be reasonably requested by Dealer to the Convertible Notes permit Dealer to determine that results described in clauses (D) and (E) will continue to not occur upon or after such transfer and assignment; and
(G) Each of Counterparty and Parent shall be obligated under the provisions set forth under “Disposition of Hedge Shares” responsible for all reasonable costs and “Repurchase Notices” herein. In additionexpenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may (A) without Counterparty’s or Parent’s consent, transfer or assign all or a portion any part of its Capped Note Hedging Units hereunder at any time without rights or obligations under the consent of Counterparty Transaction to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by GS Group generally for similar transactions, by GS Group, or (B) in consultation with Counterparty and/or Parent, and with Counterparty’s and/or Parent’s prior written consent (which consent not to be delayed or unreasonably withheld), transfer or assign all or any part of its affiliates that is rights or obligations under the Transaction to any other third party with a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an long-term issuer rating equal to or better creditworthiness than Dealer the lesser of (1) the credit rating of GS Group at the time of the transfer and (2) A- by Standard and Poor’s Rating Group, Inc. or its guarantorsuccessor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. (“Moody’s”) or, if either S&P or whose obligations would be guaranteed Moody’s ceases to rate such debt, at least an equivalent rating or better by Dealer (or its guarantor)a substitute rating agency mutually agreed by Counterparty, Parent and Dealer; provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.:
Appears in 1 contract
Sources: Base Call Option Transaction (Nabors Industries LTD)
Transfer or Assignment. Counterparty Company may not transfer or assign any of its rights or obligations under the Transaction without the prior written consent of Dealer. Dealer provided may, without Company’s consent, transfer or assign all, but not less than all, of its rights or obligations under the Transaction to any Affiliate of Dealer that is or will be a nationally recognized dealer in equity derivatives similar to the Transaction (x) that has a long-term issuer rating at the time of such transfer or assignment that is equal to or better than Dealer’s (or, solely if Dealer’s obligations under this Confirmation are guaranteed by its ultimate parent, its ultimate parent’s) credit rating at the time of such transfer or assignment and (y) solely if Dealer’s obligations under this Confirmation are guaranteed and the transferee is not Dealer’s ultimate parent, whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or its ultimate parent, if the following conditions are satisfied: satisfied (ithe “Transfer Conditions”): (1) the receipt transferee agrees in writing with Dealer to be bound by Dealer the terms of opinions and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer this Confirmation with respect to any legal the transferred obligations; (2) as of the date of such transfer or assignment, and regulatory requirements relevant to Dealergiving effect thereto, (iiix) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer Company will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty Company would have been required to pay to Dealer in the absence of such transfer or assignment and (y) Company will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount (taking into account any additional amounts paid under Section 2(d)(i)(4) of the Agreement) that is less than the amount that Company would have received from Dealer in the absence of such transfer or assignment; (3) no Event of Default where Dealer is the Defaulting Party or Termination Event where Dealer is the sole Affected Party has occurred and is continuing at the time of the transfer., and, as of the date of such transfer or assignment, no Event of Default or Termination Event will occur with respect to Company, Dealer or the transferee as a result of such transfer; (4) as of the date of such transfer or assignment, if to a transferee incorporated or organized in a jurisdiction other than the United States [or][,] United Kingdom [or [_____]]5, after giving effect to such transfer, no material adverse legal or regulatory consequence shall result to Dealer, Company or the transferee as a result of such transfer and (5) Dealer shall have provided prompt written notice to Company of such transfer. Any transfer not in compliance with the Transfer Conditions will be void. If at any time at which (A) the Section 16 Percentage exceeds 9.0%, (B) the Warrant Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B), or (C), an “Excess Ownership Position”), Dealer, acting in good faith, is unable after using its commercially reasonable efforts to effect a transfer or assignment of Warrants to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. Dealer shall notify Company of an Excess Ownership Position with 5 Insert any other applicable Dealer jurisdiction
Appears in 1 contract
Sources: Warrant Agreement (Luminex Corp)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the "Transfer Options"); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the "Code"));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable United States and Canadian securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable United States and Canadian securities laws) and execution of any documentation and delivery of legal opinions with respect to United States and Canadian securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will not be requirednot, as a result of such transfertransfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Dealer would have been required to pay to Counterparty in the absence of such transfertransfer and assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (v2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment, receive from the transferee or assignee on any payment date an amount (after taking into account amounts required to be paid by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any amounts withheld) that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment;
(E) An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer and assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (E) will not occur upon or after such transfer and assignment; and
(G) Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or assignment.
(ii) Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without Counterparty's consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer's credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer's ultimate parent, or (B) with Counterparty's consent (such consent not to be unreasonably withheld or delayed), to any other third party financial institution that is a recognized dealer in the market for U.S. corporate equity derivatives with a long-term issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard and Poor's Financial Services LLC or its successor ("S&P"), or A3 by ▇▇▇▇▇'▇ Investor Service, Inc. ("▇▇▇▇▇'▇") or, if either S&P or ▇▇▇▇▇'▇ ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in Dealer’s reasonable determinationthe case of any transfer or assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment, (i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) both Dealer and the transferee or assignee in any such transfer or assignment are a "dealer in securities" within the meaning of Section 475(c)(1) of the Code, or such transfer or assignment will not constitute a "deemed exchange" by Counterparty within the meaning of Section 1001 of the Code and (viiii)(1) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, amount that Counterparty would have been required to pay to Dealer in the absence of such transfertransfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any payment date an amount of cash or shares (after taking into account amounts required to be paid or delivered by the transferee or assignee under Section 2(d)(i)(4) of the Agreement, as well as any withholding) that is less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 8.0%, (B) the Option Equity Percentage exceeds 14.5%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an "Excess Ownership Position"), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the "Terminated Portion"), such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The "Section 16 Percentage" as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the "beneficial ownership" test under Section 13 of the Exchange Act, or any "group" (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part beneficially owns (within the meaning of Section 13 of the Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such day. The "Option Equity Percentage" as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding. The "Share Amount" as of any day is the number of Shares that Dealer and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a "Dealer Person") under any federal, state, provincial or local (including U.S. and any non-U.S. jurisdiction's) law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares ("Applicable Restrictions"), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The "Applicable Share Limit" means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in (ii), (iii)(1) and (iii)(2) of this paragraph will not occur upon or after the transfer and assignment.
Appears in 1 contract
Transfer or Assignment. Counterparty may The rights and obligations of Network and Affiliate under this Agreement shall be binding upon their respective assignees, transferees or successors in interest. This Agreement shall not be assigned or transferred (whether directly or indirectly, or by a transfer any of its rights control or obligations under the Transaction otherwise), in whole or in part, by Affiliate Parent, an Affiliate Subsidiary or a LicenseCo Subsidiary (each, an “Affiliate Party”) without the prior written consent of Dealer provided Network, in the following conditions are satisfied: sole discretion of Network, and any permitted assignment shall not relieve an Affiliate Party of its obligations hereunder. Any purported assignment by an Affiliate Party without such consent shall be null and void and not enforceable against Network and shall be considered a default by such Affiliate Party under this Agreement. Affiliate shall immediately notify Network in writing if any application is made to the FCC pertaining to an assignment or a transfer of control of an Affiliate Party’s license for a Station or any interest therein, except for “short form” assignments or transfers of control made pursuant to Section 73.3540(f) of the FCC’s rules which do not affect the applicability of this Agreement to the applicable Station or Stations (i“Short Form Transfers”). For purposes of this Section 13, a “transfer of control” shall include an Affiliate Party’s relinquishment or return of a Station’s FCC licenses to the government. Network shall have the right to terminate this Agreement, effective upon 30 days’ written notice to Affiliate after notification of any such application (or at any time after it becomes aware of the filing of such application) to which Network did not grant consent as set forth above, regardless as to whether the receipt by Dealer of opinions proposed assignee or transferee agrees to assume such Affiliate Party’s obligations hereunder. Each Affiliate Party agrees that, upon Network’s request, such Affiliate Party shall procure and documentation deliver to Network, in form reasonably satisfactory to Dealer Network, the agreement of the proposed assignee or transferee that, upon consummation of the assignment or transfer of control of a Station’s authorization, the assignee or transferee will assume and perform this Agreement in connection its entirety without limitation of any kind. If Affiliate fails to notify Network of the proposed assignment or transfer of control of a Station’s authorization (except for Short Form Transfers), or fails to procure the agreement of the proposed assignee or transferee in accordance with this Section 13, then such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer with respect failure shall be deemed a material breach of this Agreement. Without limitation to any legal and regulatory requirements relevant to Dealer, (iii) the transferee being a United States person (as defined in the Code), (iv) that, in Dealer’s reasonable determination, Dealer will not be required, as a result other provision of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the this Agreement greater than the amount, if any, that Dealer would have been required to pay to Counterparty in the absence of such transfer, (v) that, in Dealer’s reasonable determination, no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and (vi) that Counterparty will continue to be obligated to provide notices hereunder relating to the Convertible Notes and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In addition, Dealer may transfer or assign all or a portion of its Capped Note Hedging Units hereunder at any time without the consent of Counterparty to any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantorNetwork’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.
Appears in 1 contract
Sources: Network Program Supply Agreement (Mediaco Holding Inc.)
Transfer or Assignment. Counterparty may transfer any of its rights or obligations under the Transaction without the prior written consent of Dealer provided the following conditions are satisfied: (i) Counterparty shall have the receipt by Dealer of opinions right to transfer or assign its rights and documentation reasonably satisfactory to Dealer in connection with such transfer, (ii) such transfer being effected on terms reasonably satisfactory to Dealer obligations hereunder with respect to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that such transfer or assignment shall be subject to reasonable conditions that Dealer may impose that are generally applicable in similar situations and applied in a non-discriminatory manner, including but not limited, to the following conditions:
(A) With respect to any legal Transfer Options, Counterparty shall not be released from its notice and regulatory requirements relevant indemnification obligations pursuant to Dealer, Section 10(b) hereof or any obligations under Section 10(o) or 10(t) hereof;
(iiiB) the transferee being Any Transfer Options shall only be transferred or assigned to a third party that is a United States person (as defined in the Internal Revenue Code of 1986, as amended (the “Code”));
(C) Such transfer or assignment shall be effected on terms, including any reasonable undertakings by such third party (iv) including, but not limited to, an undertaking with respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer’s reasonable determination, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of legal opinions with respect to securities laws and other matters by such third party and Counterparty, as are requested and reasonably satisfactory to Dealer;
(D) Dealer will not be requirednot, as a result of such transfertransfer or assignment, be required to pay the transferee or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, an amount that Dealer would have been required to pay to Counterparty in the absence of such transfer, transfer or assignment except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer or assignment;
(vE) that, in Dealer’s reasonable determination, no An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) Without limiting the generality of clause (B), Counterparty shall cause the transferee or assignee to make such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clauses (D) and (viE) that will not occur upon or after such transfer or assignment; and
(G) Counterparty will continue to shall be obligated to provide notices hereunder relating to the Convertible Notes responsible for all commercially reasonable costs and will continue to be obligated under the provisions set forth under “Disposition of Hedge Shares” and “Repurchase Notices” herein. In additionexpenses, including commercially reasonable counsel fees, incurred by Dealer may in connection with such transfer or assignment.
(ii) Dealer may, (A) without Counterparty’s consent, transfer or assign (a “Transfer”) all or any part of its rights or obligations under the Transaction to any affiliate of Dealer (1) that has a rating for its long term, unsecured and unsubordinated indebtedness that is equal to or better than Dealer’s credit rating at the time of such Transfer, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or (B) with Counterparty’s consent (which consent will not be unreasonably withheld) to any other third party with a rating for its long term, unsecured and unsubordinated indebtedness equal to or better than the lesser of (1) the credit rating of Dealer at the time of the Transfer and (2) A- by Standard and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by ▇▇▇▇▇’▇ Investor Service, Inc. or its successor (“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that either (x) each of Dealer and the transferee in any such Transfer is a “dealer in securities” within the meaning of Section 475(c)(1) of the Code or (y) the Transfer does not result in a deemed exchange by Counterparty within the meaning of Section 1001 of the Code; and provided further that Dealer shall provide prompt written notice to Counterparty following any such Transfer. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage exceeds 17% or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably acceptable to Dealer such that (after giving effect to such transfer or assignment and any resulting change in Dealer’s commercially reasonable Hedge Positions) no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination Date with respect to a portion of its Capped Note Hedging Units hereunder at the Transaction (the “Terminated Portion”), such that (after giving effect to such transfer or assignment and any time without resulting change in Dealer’s commercially reasonable Hedge Positions) following such partial termination no Excess Ownership Position exists. In the consent event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a payment shall be made pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) hereof shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty were not the Affected Party). The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Dealer and any of its affiliates that is a 100% owned direct or indirect subsidiary of Dealer’s ultimate parent company and has an equal or better creditworthiness than Dealer (or its guarantor’s) or whose obligations would be guaranteed by Dealer (or its guarantor); provided that, in Dealer’s reasonable determination, Counterparty will not be required, as a result of such transfer, to pay the transferee an amount under Section 2(d)(i)(4) of the Agreement greater than the amount, if any, that Counterparty would have been required to pay to Dealer in the absence of such transfer.any other person
Appears in 1 contract