Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default ~~with respect to Counterparty~~ occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then ~~such event of default shall constitute~~ an Additional Termination Event ~~applicable to the Transaction~~ shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Promptly following any repurchase and cancellation of Convertible Notes (whether pursuant to Section 15.02 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture) or otherwise, and whether for cash or other property or securities), Counterparty may notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any such notice, a “Cancellation Notice”). Notwithstanding anything to the contrary in this Confirmation, the ~~occurrence~~ receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Cancellation Notice, within the applicable time period set forth in the preceding sentence, shall constitute an Additional Termination Event ~~applicable~~ as set forth in this Section 9(h)(iii). Upon receipt of any such Cancellation Notice, Dealer shall designate an Exchange Business Day promptly following receipt of such Cancellation Notice (which in no event shall be earlier than the related repurchase date for such Convertible Notes and shall be no later after such repurchase date than is reasonably necessary for the calculation of the amount payable hereunder) as an Early Termination Date with respect to the portion of the Transaction corresponding to the number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Cancellation Notice, minus the “Repurchase Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes specified in such Cancellation Notice and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options (which Options shall be deemed for such purpose to be exercisable on the applicable Early Termination Date), (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 3 contracts

Samples: Call Option Transaction (Cepheid), Call Option Transaction (Cepheid), Call Option Transaction (Cepheid)

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

Appears in 3 contracts

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

Appears in 3 contracts

Samples: Additional Call Option Transaction (Pioneer Natural Resources Co), Additional Call Option Transaction (Pioneer Natural Resources Co), Additional Call Option Transaction (Pioneer Natural Resources Co)

Appears in 3 contracts

Samples: Base Call Option Transaction (Callaway Golf Co), Base Call Option Transaction (Callaway Golf Co), Base Call Option Transaction (Callaway Golf Co)

Appears in 3 contracts

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

Appears in 3 contracts

Samples: Call Option Transaction (Zillow Group, Inc.), Call Option Transaction (Zillow Group, Inc.), Call Option Transaction (Zillow Group, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default ~~with respect to Counterparty~~ occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then ~~such event of default shall constitute~~ an Additional Termination Event ~~applicable to the Transaction~~ shall occur and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Promptly following any repurchase and cancellation of Convertible Notes (whether pursuant to Section 15.02 of the Indenture in connection with a “Fundamental Change” (as defined in the Indenture) or otherwise, and whether for cash or other property or securities), Counterparty may notify Dealer in writing of such repurchase and cancellation and the number of Convertible Notes so repurchased and cancelled (any such notice, a “Cancellation Notice”). Notwithstanding anything to the contrary in this Confirmation, the ~~occurrence~~ receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Cancellation Notice, within the applicable time period set forth in the preceding sentence, shall constitute an Additional Termination Event ~~applicable~~ as set forth in this Section 9(h)(iii). Upon receipt of any such Cancellation Notice, Dealer shall designate an Exchange Business Day promptly following receipt of such Cancellation Notice (which in no event shall be earlier than the related repurchase date for such Convertible Notes and shall be no later after such repurchase date than is reasonably necessary for the calculation of the amount payable hereunder) as an Early Termination Date with respect to the portion of the Transaction corresponding to the number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of such Convertible Notes specified in such Cancellation Notice and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repurchase Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repurchase Options (which Options shall be deemed for such purpose to be exercisable on the applicable Early Termination Date), (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event,~~ Event and (A3) ~~Counterparty shall be deemed to be~~ the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 3 contracts

Samples: Base Call Option Transaction (Cepheid), Base Call Option Transaction (Cepheid), Base Call Option Transaction (Cepheid)

Appears in 3 contracts

Samples: Base Call Option Transaction (SM Energy Co), Base Call Option Transaction (SM Energy Co), Base Call Option Transaction (SM Energy Co)

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

Appears in 3 contracts

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

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

Appears in 3 contracts

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

Appears in 3 contracts

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

Appears in 3 contracts

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

Appears in 3 contracts

Samples: Base Call Option Transaction (Wix.com Ltd.), Base Call Option Transaction (Wix.com Ltd.), Base Call Option Transaction (Wix.com Ltd.)

Appears in 3 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 2 contracts

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

Appears in 2 contracts

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Appears in 1 contract

Samples: Base Call Option Transaction (INPHI Corp)

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

Appears in 1 contract

Samples: Call Option Transaction (LivaNova PLC)

Appears in 1 contract

Samples: Call Option Transaction (Imax Corp)

Appears in 1 contract

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

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

Appears in 1 contract

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

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Call Option Transaction (MP Materials Corp. / DE)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the ~~Applicable Percentage multiplied by (2) the~~ Affected Number of Options, multiplied by (32) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~contrary~~ Exchange Act and the rules and regulations thereunder, in ~~this Confirmation,~~ respect of the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant Repayment Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected ~~Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement~~Transaction. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives or obtains a waiver~~ (ii) any Convertible Notes are delivered to Counterparty in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture~~ Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent~~ other than as a result of ~~the holders of not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ Section 10(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to any exchange offer or similar transaction; provided, however, that no Repayment Event shall occur to the extent that the repurchase is effected pursuant to Section ~~10.01(h~~16.01 of the Indenture. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Samples: Base Call Option Transaction (Boingo Wireless Inc)

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Call Option Transaction (Xerox Corp)

Appears in 1 contract

Samples: Base Call Option Transaction (Fisker Inc./De)

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

Appears in 1 contract

Samples: Call Option Transaction (Chegg, Inc)

Appears in 1 contract

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

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, as promptly as reasonably practicable, and in any event within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to 1 Possible language if relevant: [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000;. (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding until their final maturity date; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the ~~contrary in~~ Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable to the Transaction and~~as provided in this Section ‎10(i)(iii). Upon receipt of any such Repayment Notice, ~~with respect to~~ Dealer shall designate an Exchange Business Day following receipt of such ~~Additional Termination Event,~~ Repayment Notice (~~A) Counterparty~~ which Exchange Business Day shall be ~~deemed to be~~ on or as promptly as reasonably practicable after the ~~sole Affected Party, (B~~related repurchase settlement date for the relevant repayment event) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ as an Early Termination Date ~~pursuant~~ with respect to ~~Section 6(b)~~ the portion of the ~~Agreement.~~ Transaction corresponding to a number of Options (the “~~Amendment Event~~Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” ~~means~~ (as defined in the Base Call Option Confirmation), if any, that ~~Counterparty amends~~relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Repayment Options hereunder or under, ~~modifies~~and as defined in, ~~supplements~~the Base Call Option Confirmation, ~~waives or obtains a waiver in respect of any term of the Indenture or~~ the Convertible Notes ~~governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes~~ specified in such Repayment Notice shall be allocated first to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.Base Call Option Confirmation until all Options thereunder are exercised or

Appears in 1 contract

Samples: Call Option Transaction (Chegg, Inc)

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

Appears in 1 contract

Samples: Call Option Transaction (Imax Corp)

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

Appears in 1 contract

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

Appears in 1 contract

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

Additional Termination Events. ~~(i)~~ Notwithstanding anything to the contrary in this Confirmation, upon the occurrence of a Conversion Date for any ~~Early Conversion in respect of which a Notice of Conversion that is effective as~~ Convertible Notes prior to ~~Counterparty has been delivered by~~ the ~~relevant converting Holder: (A) Counterparty shall, within one~~ 32nd Scheduled Trading Day prior to May 1, 2015 (an “Early Conversion”): (i) Counterparty shall within two Scheduled Trading Days of the relevant Conversion Date ~~for such Early Conversion,~~ provide written notice (an “~~Early~~ Unwind Conversion Notice”) to Dealer specifying the number of Convertible Notes ~~surrendered for conversion~~ converted on such Conversion Date and identifying the related conversions as Early Conversions; (~~such Convertible Notes, the “Affected Convertible Notes”), and the giving of~~ ii) such Early Conversion ~~Notice~~ shall constitute an Additional Termination Event hereunder with respect to a number of Options equal to the Applicable Percentage times the number of Convertible Notes surrendered for conversion in connection with such Early Conversion (the “Affected Number of Options”), in which case (x) the sole Affected Transaction shall consist of a transaction identical to the Transaction except that Number of Options for such Affected Transaction shall equal the Affected Number of Options and Counterparty shall be deemed the sole Affected Party and (y) the Transaction shall remain in full force and effect, except that the Number of Options subject to the Transaction immediately prior to the Conversion Date for such Early Conversion shall as ~~provided in this clause (i)~~of such Conversion Date be reduced by the Affected Number of Options; (Biii) ~~upon receipt of any such Early Conversion Notice~~notwithstanding anything to the contrary in the Agreement, Dealer shall designate an ~~Exchange Business Day as an~~ Early Termination Date (in respect of such Affected Transaction, which ~~Exchange Business Day~~ shall be no earlier than one Scheduled Trading Day following the Conversion Date for ~~such~~ the related Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion;; and (Civ) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion ~~and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto~~ had not occurred, (y) ~~no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z)~~ the corresponding Convertible Notes remain ~~outstanding; and~~ outstanding and (Ez) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding notwithstanding anything to the contrary in this Confirmation ~~if an event of default with respect~~ or the Indenture, the Conversion Rate was not adjusted pursuant to ~~Counterparty occurs under the terms of the Convertible Notes as set forth in~~ Section ~~6.01~~ 13.01(e) of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Samples: Capped Call Transaction (Advanced Micro Devices Inc)

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

Appears in 1 contract

Samples: Base Call Option Transaction (Mercadolibre Inc)

Appears in 1 contract

Samples: Base Call Option Transaction (Aerie Pharmaceuticals Inc)

Appears in 1 contract

Samples: Call Option Transaction (Parsons Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, within a commercially reasonable period of time thereafter, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the [Holder] (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ [Holder] (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section ~~6.01~~ 7.01 of the Indenture that results in the Convertible Notes becoming or being declared due and payable pursuant to the terms of the Indenture, then such ~~event of default~~ acceleration shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) ~~Notwithstanding anything~~ Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice. Such Repurchase Notice shall contain the ~~contrary~~ representation and warranty that Counterparty is not, on the date thereof, in ~~this Confirmation,~~ possession of any material non-public information with respect to Counterparty or the ~~occurrence~~ Shares. The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(h)(iii). Upon receipt of any such Repayment Notice, within a commercially reasonable period of time thereafter, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date (which Exchange Business Day shall be on or as promptly as reasonably practicable after the settlement date of the relevant Repayment Event) with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination ~~Event~~Event and (3) the terminated portion of the Transaction were the sole Affected Transaction; provided that, in the event of a Repayment Event pursuant to Section 4.02 of the Indenture or Section 4.03 of the Indenture, the amount payable with respect to such termination shall not be greater than (x) the number of Repayment Options multiplied by (y) the product of (A) ~~Counterparty shall be deemed to be~~ the ~~sole Affected Party,~~ Applicable Percentage and (B) the ~~Transaction shall be~~ excess of (I) the ~~sole Affected Transaction and (C) Dealer shall be~~ amount paid by the ~~party entitled to designate an Early Termination Date~~ Counterparty per Convertible Note pursuant to ~~Section 6(b)~~ the relevant sections of the ~~Agreement~~Indenture over (II) USD 1,000. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives~~ (ii) any Convertible Notes are delivered to Counterparty or ~~obtains a waiver~~ any of its subsidiaries in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture or~~ such party (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or~~ for any ~~term that would require consent~~ reason other than as a result of ~~the holders of not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ Section 9(h)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the [“Holders”] (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Samples: Base Capped Call Option Transaction (Innoviva, Inc.)

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

Appears in 1 contract

Samples: Call Option Transaction (Kilroy Realty Corp)

Appears in 1 contract

Samples: Call Option Transaction Confirmation (Interactive Intelligence Group, Inc.)

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

Appears in 1 contract

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

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

Appears in 1 contract

Samples: Call Option Transaction (Liveperson Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(i)(C) as if Counterparty were not the Affected Party); provided that the amount 1 Possible language if relevant: [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000;. (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain ~~outstanding~~outstanding until their final maturity date; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything to~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x) in the ~~contrary in this Confirmation,~~ case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of ~~an Amendment~~ a “Fundamental Change” (as defined in the Indenture), shall notify Dealer in writing of such Repayment Event and (y) in the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the aggregate principal amount of Convertible Notes (the “Repayment Convertible Notes”) subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that no such Repayment Notice described in clause (y) above shall be effective unless it contains the representation by Counterparty set forth in Section 8(f) as of the date of such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section ‎10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such ~~Additional Termination Event,~~ termination (Athe “Repayment Unwind Payment”) ~~Counterparty~~ shall be ~~deemed~~ calculated pursuant to be Section 6 of the ~~sole Affected Party,~~ Agreement as if (B1) ~~the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate~~ an Early Termination Date ~~pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver~~ had been designated in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes a Transaction having terms identical to the ~~conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent~~ Transaction and a Number of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture Options equal to the ~~description~~ number of ~~Convertible Notes in~~ Repayment Options, (2) Counterparty were the ~~Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.~~sole Affected Party with respect

Appears in 1 contract

Samples: Base Call Option Transaction (Chegg, Inc)

Appears in 1 contract

Samples: Call Option Transaction (Under Armour, Inc.)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as such term is defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting “Holder:” (as such term is defined in the Indenture): (A) Counterparty shall, ~~within one~~ no later than five Scheduled Trading ~~Day~~ Days after (1) in the case of any such Pre-FCD Conversion, the relevant Conversion Date or (2) in the case of any such Redemption Conversion, the last day of the ~~Conversion Date for such Early Conversion~~relevant Redemption Period, provide written notice (an “Early Conversion Notice”) to Dealer specifying (x) in the case of any such Pre-FCD Conversion, the number of Convertible Notes surrendered for conversion on ~~such~~ the relevant Conversion Date or (y) in the case of any such Redemption Conversion, the aggregate number of Convertible Notes surrendered for conversion during the relevant Redemption Period (in each case, such Convertible Notes, the “Affected Convertible Notes”)[; provided that, any “Early Conversion Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall deemed to be an Early Conversion Notice pursuant to this Confirmation and the ~~giving~~ terms of such Early Conversion Notice shall ~~constitute an Additional Termination Event as provided in~~ apply, mutatis mutandis, to this ~~clause (i)~~Confirmation]22; (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one~~ on or as promptly as reasonably practicable after (1) in the case of any such Pre-FCD Conversion, the settlement date for the conversion of the Affected Convertible Notes or (2) in the case of any such Redemption Conversion, the later of (x) the settlement date for the conversion of the Affected Convertible Notes and (y) the Scheduled Trading Day immediately following the date of the relevant Early Conversion ~~Date for such Early Conversion~~Notice) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under the Base Call Option Confirmation will be among the Affected Number of Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Affected Convertible Notes specified in such Early Conversion Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]23 and (y) the Number of Options as of (I) in the case of any such Pre-FCD Conversion, the relevant Conversion Date ~~for~~ or (II) in the case of any such ~~Early~~ Redemption Conversion, the last day of the relevant Redemption Period; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 9(l) of this Confirmation shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 9(i)(i)(C) as if, solely for the purpose of electing the settlement method, Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the “Holder” (~~if any~~as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the ~~Holder~~ “Holder” (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Notes, minus (y) USD 1,000;; 22 Insert for Additional Call Option Confirmation. 23 Include in Additional Call Option Confirmation only. (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion ~~Rate~~ Rate” (as such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of (1) in the case of any such Pre-FCD Conversion, the relevant Conversion Date ~~for~~ or (2) in the case of any such ~~Early~~ Redemption Conversion, the last day of the relevant Redemption Period, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and the Convertible Notes are declared due and payable as a result thereof, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, redemption right of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the ~~holders~~ “Holders” (as such term is defined in the Indenture) of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section ~~10.01(h~~10.01(k) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 10.01(a) or Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Samples: Call Option Transaction (Fluor Corp)

Appears in 1 contract

Samples: Call Option Transaction (Fiverr International Ltd.)

Appears in 1 contract

Samples: Call Option Transaction (Granite Construction Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i), and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation; provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 10(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within ten Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the ~~Applicable Percentage multiplied by (2) the~~ Affected Number of Options, multiplied by (32) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the ~~contrary in~~ Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation~~, the occurrence~~ . The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant Repayment Event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected ~~Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement~~Transaction. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased or redeemed (whether in connection with or as a result of a fundamental change, howsoever defined, or for any other reason) by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives or obtains a waiver~~ (ii) any Convertible Notes are delivered to Counterparty in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture~~ Counterparty or any of its subsidiaries (howsoever described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent~~ other than as a result of ~~the holders of not less than 100% of the principal amount~~ an acceleration of the Convertible Notes that results in an Additional Termination Event pursuant to ~~amend~~ Section 10(i)(ii)), or (iv) any Convertible Notes are exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other ~~than~~securities of Counterparty or any of its subsidiaries (or any other property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to any exchange offer or similar transaction; provided, however, that no Repayment Event shall occur to the extent that the repurchase is effected pursuant to Section ~~10.01(h~~16.01 of the Indenture. For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealershall not constitute a Repayment Event.

Appears in 1 contract

Samples: Call Option Transaction (Boingo Wireless Inc)

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

Appears in 1 contract

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

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ seven Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i);[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]15; provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; 15 Include in Additional Call Option Confirmation only. (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than the later of (x) one Scheduled Trading Day following the Conversion Date for such Early ~~Conversion~~Conversion and (y) the date on which Counterparty provides the written notice described in Section 9(i)(i)(A) above) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]16 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) Counterparty shall notify Dealer (which notice may, for the avoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date; (E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. 16 Include in Additional Call Option Confirmation only. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the ~~contrary~~ Indenture. Any Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and the representations by Counterparty set forth in Section 8(a)(vi) as of the date of such Repayment Notice. [Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this ~~Confirmation~~Confirmation and the terms of such Repayment Notice shall apply, ~~the occurrence~~ mutatis mutandis, to this Confirmation]17. The receipt by Dealer from Counterparty of ~~an Amendment Event~~ any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000[, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]18, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected ~~Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement~~Transaction. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer17 Include for Additional Call Option Confirmation. 18 Include for Additional Call Option Confirmation.

Appears in 1 contract

Samples: Call Option Transaction (Upstart Holdings, Inc.)

Appears in 1 contract

Samples: Base Call Option Transaction (CNX Resources Corp)

Appears in 1 contract

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

Appears in 1 contract

Samples: Call Option Transaction (Ani Pharmaceuticals Inc)

Appears in 1 contract

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

Appears in 1 contract

Samples: Call Option Transaction (Five9, Inc.)

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

Appears in 1 contract

Samples: Base Call Option Transaction (Keyw Holding Corp)

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

Appears in 1 contract

Samples: Call Option Transaction (Novavax Inc)

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

Appears in 1 contract

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

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

Appears in 1 contract

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

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

Appears in 1 contract

Samples: Call Option Transaction (Federal Realty OP LP)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within one Scheduled Trading Day of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]14 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied by the ~~Applicable Limit Price~~fair market value of one Share as determined by the Calculation Agent, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. 14 Include in Additional Call Option Confirmation only. (ii) Notwithstanding anything to the contrary in this ~~Confirmation if an event~~ Confirmation: (A) promptly following any Repayment Event (as defined below) (but, in any event, within five Scheduled Trading Days following settlement thereof), Counterparty shall notify Dealer (any such notice, a “Repayment Notice”) of ~~default with respect~~ such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (the “Repayment Convertible Notes”), and the receipt by Dealer from Counterparty ~~occurs~~ of (x) such Repayment Notice and (y) a written acknowledgment by Counterparty of its responsibilities under ~~the terms~~ applicable securities laws, and in particular Section 9 and Section 10(b) of the ~~Convertible Notes as set forth in Section 6.01 of~~ Exchange Act and the ~~Indenture~~rules and regulations thereunder, ~~then such event of default~~ shall constitute an Additional Termination Event as provided in this clause (ii); (B) upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related settlement date for the relevant Repayment Event) as an Early Termination Date with respect to a portion (the “Repayment Terminated Portion”) of the Transaction consisting of a number of Options (the “Repayment Options”) equal to the lesser of (A) the number of Repayment Convertible Notes in denominations of USD1,000 that are subject to the relevant Repayment Event and (B) the Number of Options as of the date Dealer designates such Early Termination Date (prior to giving effect to a reduction thereto on such date pursuant to the immediately following sentence). As of any such Early Termination Date, the Number of Options shall be reduced by the applicable number of Repayment Options; (C) any payment or delivery in respect of such termination of the Repayment Terminated Portion of the Transaction shall be made pursuant to Section 6 of the Agreement as if an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and,~~ and a Number of Options equal to the number of Repayment Options. Counterparty shall be the sole Affected Party with respect to such Additional Termination ~~Event, (A) Counterparty shall be deemed to be~~ Event and the ~~sole Affected Party, (B)~~ Repayment Terminated Portion of the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the AgreementTransaction. “~~Amendment~~ Repayment Event” means that (i) any Convertible Notes are repurchased by Counterparty ~~amends~~or any of its subsidiaries, ~~modifies, supplements, waives or obtains a waiver~~ (ii) any Convertible Notes are delivered to Counterparty in ~~respect~~ exchange for delivery of any ~~term~~ property or assets of ~~the Indenture~~ Counterparty or any of its subsidiaries (however described), (iii) any principal of any of the Convertible Notes ~~governing~~ is repaid prior to the ~~principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion~~ final maturity date of the Convertible Notes (~~including changes to~~ other than upon acceleration following an event of default under the ~~conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions~~Convertible Notes), or (iv) any ~~term that would require consent~~ Convertible Notes are exchanged by or for the benefit of the ~~holders~~ “Holders” (as defined in the Indenture) thereof for any other securities of ~~not less than 100%~~ Counterparty or any of its “Affiliates” (as defined in the ~~principal amount of the Convertible Notes to amend~~ Indenture) (or any other ~~than~~property, ~~in each case,~~ or any ~~amendment or supplement (x~~combination thereof) pursuant to ~~Section 10.01(h~~any exchange offer or similar transaction. For the avoidance of doubt, conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant to the terms of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.shall not constitute a Repayment Event; and

Appears in 1 contract

Samples: Call Option Transaction (Allegheny Technologies Inc)

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

Appears in 1 contract

Samples: Base Call Option Transaction (Nabors Industries LTD)

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

Appears in 1 contract

Samples: Base Call Option Transaction (INPHI Corp)

Appears in 1 contract

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

Additional Termination Events. ~~(i)~~ i. Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ seven Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i)[, and any Early Conversion Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be an Early Conversion Notice pursuant to this Confirmation and the terms of such Early Conversion Notice shall apply, mutatis mutandis, to this Confirmation]16; provided that any such Early Conversion Notice shall contain an acknowledgment by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder in respect of the delivery of such Early Conversion Notice; provided further that the provisions of this Section 9(i)(i) shall not apply to any Affected Convertible Note (i) with respect to which Counterparty has elected the “Exchange in Lieu of Conversion” option pursuant to Section 14.12 of the Indenture and (ii) that has been accepted by the designated financial institution pursuant to Section 14.12 of the Indenture, except to the extent that Counterparty notifies Dealer, within five Scheduled Trading Days of the then applicable conversion settlement date determined pursuant to Section 14.02(c) of the Indenture, that (x) such financial institution has failed to pay or deliver, as the case may be, the consideration due upon conversion of such Affected Convertible Note, or (y) such Affected Convertible Note is subsequently resubmitted to Counterparty for conversion in accordance with the terms of the Indenture; (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than the later of (x) one Scheduled Trading Day following the Conversion Date for such Early ~~Conversion~~Conversion and (y) the date on which Counterparty provides the written notice described in Section 9(i)(i)(A) above) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]17 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 16 Include in Additional Call Option Confirmation only. 17 Include in Additional Call Option Confirmation only. (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including for such purposes taking into account any applicable adjustments to the Conversion Rate pursuant to Section 14.03 of the Indenture), multiplied by the Applicable Limit Price, minus (y) USD 1,000; (D) Counterparty shall notify Dealer (which notice may, for the avoidance of doubt, be by email) of the amount of cash, if any, paid to the Holder and the number of Shares, if any, delivered to the Holder, in each case as described in clause (3) of the foregoing Section 9(i)(i)(C), prior to relevant Early Termination Date; (E) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (EF) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) . Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement.~~ Agreement (~~iii) Notwithstanding anything to the contrary in this Confirmation,~~ which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). iii. Within seven Scheduled Trading Days following any Repayment Event (as defined below), Counterparty may, at its option, notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that Counterparty shall timely provide a Repayment Notice in connection with any redemption of the Convertible Notes pursuant to the Indenture. Any Repayment Notice shall contain an ~~Amendment Event~~ acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the delivery of such Repayment Notice and the representations by Counterparty set forth in Section 8(a)(vi) as of the date of such Repayment Notice. Any Repayment Notice delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to this Confirmation]18. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 9(i)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the later of (x) the related repurchase settlement date for the relevant Repayment Event and (y) the date on which Counterparty provides the Repayment Notice described in this Section 9(i)(iii)) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) [(x)] the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the number of “Repayment Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Convertible Notes]19, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 1 contract

Samples: Call Option Transaction (Groupon, Inc.)

Appears in 1 contract

Samples: Call Option Transaction (Integer Holdings Corp)

Appears in 1 contract

Samples: Call Option Transaction (Western Digital Corp)

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

Appears in 1 contract

Samples: Base Call Option Transaction (Novavax Inc)

Appears in 1 contract

Samples: Additional Call Option Transaction (Imax Corp)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion ~~in respect of~~ for which a ~~Notice of~~ Conversion ~~that is effective as to Counterparty~~ Date has ~~been delivered by the relevant converting Holder~~occurred: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the Conversion Date for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i‎(i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled ~~Trading~~ Valid Day following the Conversion Date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]49 and (y) the Number of Options as of the Conversion Date for such Early Conversion; (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note (including any cash payable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]50 of the Indenture) and (ii) the number of Shares delivered (if any) to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible ~~Note~~Note (including any Shares deliverable as the result of an adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to Section [5.07]51 of the Indenture), multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the conversion of such Affected Convertible Note (the “Conversion Settlement Date”), minus (y) ~~USD 1,000; (D) for~~ the ~~avoidance of doubt, in determining the amount payable in respect of such~~ Synthetic Instrument Adjusted Issue Price per Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or Convertible Note on ~~behalf of Counterparty leading thereto had not occurred, (y) no adjustments to~~ the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. (iii) Notwithstanding anything to the contrary in this Confirmation, the occurrence of an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture thatSettlement Date, as determined by the Calculation ~~Agent, conforms~~ Agent in good faith and in a commercially reasonable manner. “Synthetic Instrument Adjusted Issue Price” shall mean the ~~Indenture~~ amount determined by the Calculation Agent by reference to the ~~description of Convertible Notes~~ table set forth below based on the relevant Conversion Settlement Date (the “Synthetic Instrument AIP Table”). 52 If the relevant Conversion Settlement Date is not listed below, the amount in the ~~Offering Memorandum or (y~~preceding sentence shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices for the dates immediately preceding and immediately following the relevant Conversion Settlement Date; 48 Include for applicable Dealers. 49 Include in Additional Call Option Confirmation only. 50 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate. 51 Include cross-reference to Indenture section(s) governing make-whole adjustments to the Conversion Rate. 52 Table to be filled out by calculating the synthetic adjusted issue price of a Convertible Note after giving effect to the integration pursuant to Section ~~14.07~~ 1.1275-6 of the ~~Indenture), in each case, without~~ United States Treasury Regulations of the ~~consent of Dealer~~Transaction (and other call option transactions with respect to such Convertible Note entered into by the Counterparty) and the Convertible Note.

Appears in 1 contract

Samples: Call Option Transaction (Fluence Energy, Inc.)

Appears in 1 contract

Samples: Call Option Transaction (Verint Systems Inc)

Appears in 1 contract

Samples: Call Option Transaction (Uber Technologies, Inc)

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

Appears in 1 contract

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

Appears in 1 contract

Samples: Call Option Transaction (Merit Medical Systems Inc)

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on or as promptly as reasonably practicable after the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion Date for such Early Conversion; 1 Possible language if relevant: [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction~~Transaction (and, for the avoidance of doubt, the provisions of Section 10(l) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(h)(i)(C) as if Counterparty were not the Affected Party); provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of ~~such~~ Shares delivered (if any) to the Holder of an Affected Convertible ~~Note~~Note upon conversion thereof, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this ~~Confirmation~~ Confirmation, if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement~~Agreement (which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of such acceleration). (iii) ~~Notwithstanding anything~~ Within five Scheduled Trading Days following any Repayment Event (as defined below) with respect to any Convertible Notes (the ~~contrary~~ “Repayment Event Notes”), Counterparty shall notify Dealer of such Repayment Event and the aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”); provided that any such Repayment Notice shall contain an acknowledgement by Counterparty of its responsibilities under applicable securities laws, and in ~~this Confirmation~~particular Section 9 and Section 10(b) of the Exchange Act and the rules and regulations thereunder, in respect of the ~~occurrence~~ delivery of ~~an Amendment Event~~ such Repayment Notice. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event ~~applicable~~ as provided in this Section 10(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt of such Repayment Notice (which Exchange Business Day shall be on or as promptly as reasonably practicable after the related repurchase settlement date for the relevant repayment event) as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind Payment”) shall be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction ~~and~~and a Number of Options equal to the number of Repayment Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event, (A3) no adjustments to the Conversion Rate have occurred pursuant to an Excluded Provision, (4) the corresponding Convertible Notes remain outstanding, (5) the relevant Repayment and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty ~~shall be deemed to be~~ leading thereto had not occurred and (6) the terminated portion of the Transaction were the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditions), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of DealerTransaction.

Appears in 1 contract

Samples: Base Call Option Transaction (Alteryx, Inc.)

Appears in 1 contract

Samples: Base Call Option Transaction (Novavax Inc)

Appears in 1 contract

Samples: Call Option Transaction (Itron, Inc.)

Appears in 1 contract

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

Additional Termination Events. (i) Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of which a “Notice of ~~Conversion~~ Conversion” (as defined in the Indenture) that is effective as to Counterparty has been delivered by the relevant converting Holder: (A) Counterparty shall, within ~~one~~ five Scheduled Trading ~~Day~~ Days of the “Conversion ~~Date~~ Date” (as defined in the Indenture) for such Early Conversion, provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”)) and the anticipated settlement date, and the giving of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); (B) upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an Early Termination Date (which Exchange Business Day shall be ~~no earlier than one Scheduled Trading Day following~~ on the ~~Conversion Date~~ related conversion settlement date for such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number of Options”) equal to the lesser of (x) the number of Affected Convertible Notes [minus the “Affected Number of Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes]19 and (y) the Number of Options as of the Conversion Date for such Early Conversion;; 18 Possible language if relevant: 19 Include in Additional Call Option Confirmation only. [Role of Agent. As a broker-dealer registered with the Securities and Exchange Commission, [Agent Name] in its capacity as Agent will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Dealer and Counterparty, (iii) maintaining books and records relating to the Transaction as required by Rules 17a-3 and 17a-4 under the Exchange Act and (iv) unless otherwise requested by Counterparty, receiving, delivering, and safeguarding Counterparty’s funds and any securities in connection with the Transaction, in compliance with Rule 15c3-3 under the Exchange Act. [Agent Name] is acting in connection with the Transaction solely in its capacity as Agent for Dealer and Counterparty pursuant to instructions from Dealer and Counterparty. [Agent Name] shall have no responsibility or personal liability to Dealer or Counterparty arising from any failure by Dealer or Counterparty to pay or perform any obligations hereunder, or to monitor or enforce compliance by Dealer or Counterparty with any obligation hereunder, including without limitation, any obligations to maintain collateral. Each of Dealer and Counterparty agrees to proceed solely against the other to collect or recover any securities or monies owing to it in connection with or as a result of the Transaction. [Agent Name] shall otherwise have no liability in respect of the Transaction, except for its gross negligence or willful misconduct in performing its duties as Agent.] (C) any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected ~~Transaction;~~ Transaction (and, for the avoidance of doubt, the provisions of Section 10(m) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this Section 10(i)(i)(C) as if Counterparty were not the Affected Party) provided that the amount payable with respect to such termination shall not be greater than (1) the Applicable ~~Percentage~~ Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid (if any) ~~and (ii) the number of Shares delivered (if any)~~ to the Holder (as such term is defined in the Indenture) of an Affected Convertible Note upon conversion thereof and (ii) the number of ~~such~~ Shares delivered (if any) to the Holder of an Affected Convertible ~~Note~~Note upon conversion thereof, multiplied by the Applicable Limit ~~Price~~Price on the settlement date for the cash to be paid and/or the Shares to be delivered to the Holders (as defined in the Indenture) of such Affected Convertible Note, minus (y) USD 1,000; (D) for the avoidance of doubt, in determining the amount payable in respect of such Affected Transaction pursuant to Section 6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the Conversion Rate have occurred pursuant to any Excluded Provision and (z) the corresponding Convertible Notes remain outstanding; and (E) the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. (ii) Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the ~~Indenture~~Indenture and such event of default results in the Convertible Notes being accelerated and declared due and payable, then such event of default shall constitute an Additional Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the ~~Agreement.~~ Agreement (~~iii) Notwithstanding anything to the contrary in this Confirmation,~~ which Early Termination Date shall be on or as promptly as reasonably practicable after Dealer becomes aware of the occurrence of ~~an Amendment Event shall constitute an Additional Termination Event applicable to the Transaction and, with respect to~~ such Additional Termination Event, (A) Counterparty shall be deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. “Amendment Event” means that Counterparty amends, modifies, supplements, waives or obtains a waiver in respect of any term of the Indenture or the Convertible Notes governing the principal amount, coupon, maturity, repurchase obligation of Counterparty, any term relating to conversion of the Convertible Notes (including changes to the conversion rate, conversion rate adjustment provisions, conversion settlement dates or conversion conditionsacceleration), or any term that would require consent of the holders of not less than 100% of the principal amount of the Convertible Notes to amend (other than, in each case, any amendment or supplement (x) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the Indenture), in each case, without the consent of Dealer.

Appears in 1 contract

Samples: Call Option Transaction (Turning Point Brands, Inc.)

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

Appears in 1 contract

Samples: Call Option Transaction (Liveperson Inc)

Common use of Additional Termination Events Clause in Contracts