Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary Dividend: Any cash dividend or distribution on the Shares with an ex-dividend date occurring on or after the Trade Date and on or prior to the latest Expiration Date (or, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full).
Appears in 8 contracts
Samples: Warrant Transaction (Air Transport Services Group, Inc.), Warrant Transaction (Air Transport Services Group, Inc.), Base Warrant Transaction (Air Transport Services Group, Inc.)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants Warrants, the Warrant Entitlement and the Warrant Entitlementcomposition of the Shares; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 12.5% of total Shares outstanding per annum. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f9(e) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary Dividend: Any cash dividend or distribution on For the Shares with an ex-dividend date occurring on or after avoidance of doubt, Calculation Agent Adjustment and the Trade Date and on or prior provisions in Section 9(e) of this Confirmation shall continue to apply until the latest Expiration Date obligations of the parties (or, if including any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed obligations of Company pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations of this Confirmation) under this the Transaction have been satisfied in full. Extraordinary Events applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia.” Consequence of Merger Events: Merger Event: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Announcement Event: If (x) an Announcement Date occurs in respect of a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or Tender Offer, (y) Company makes a public announcement of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (z) there occurs any subsequent public announcement of a change to a transaction or intention that is the subject of an announcement of the type described in clause (x) or (y) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention) (in each case, whether such announcement is made by Company or a third party) (any event described in clause (x), (y) or (z), an “Announcement Event”), then on or after the date of the Announcement Event and prior to the Expiration Date, any Early Termination Date and/or any other date of cancellation (the “Announcement Event Adjustment Date”) in respect of each Warrant, the Calculation Agent will determine the cumulative economic effect on such Warrant of the Announcement Event (without duplication in respect of any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement, regardless of whether the Announcement Event actually results in a Merger Event or Tender Offer, and taking into account such factors as the Calculation Agent may determine, including, without limitation, changes in volatility, expected dividends, stock loan rate or liquidity or any Share price discontinuity relevant to the Shares or the Transaction, whether prior to or after the Announcement Event or for any period of time, including, without limitation, the period from the Announcement Event to the relevant Announcement Event Adjustment Date; provided that such period of time results in a commercially reasonable adjustment, as determined by the Calculation Agent by reference to the effect of such event on the Hedging Party, assuming that the Dealer maintains a commercially reasonable hedge position). If the Calculation Agent determines that such economic effect on any Warrant is material, then on the Announcement Event Adjustment Date for such Warrant, the Calculation Agent may make such adjustment to the exercise, settlement, payment or any other terms of such Warrant as the Calculation Agent determines appropriate to account for such cumulative economic effect. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. Announcement Date: The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof and (v) inserting the word “potential” following the words “in the case of a” at the beginning of clauses (i) and (ii) therein. Modified Calculation Agent Adjustment: If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Company being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, Company and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its commercially reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its commercially reasonable hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions may apply at Dealer’s commercially reasonable discretion. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following sentence at the end of such Section: For the avoidance of doubt, (i) the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk, and (ii) any such transactions or assets referred to in clause (A) or (B) above must be available on commercially reasonable pricing terms.”; and
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or, if the Hedging Disruption would be eliminated by terminating only a portion of the Transaction, such portion of the Transaction”. Increased Cost of Hedging Applicable; provided that the following parenthetical shall be inserted immediately following the word “expense” in the third line of Section 12.9(a)(vi) of the Equity Definitions: “(including, for the avoidance of doubt, the incurrence of any stock borrow expense in excess of Hedging Party’s expectation as of the Trade Date, other than to the extent resulting from an Increased Cost of Stock Borrow)”. Loss of Stock Borrow: Applicable Maximum Stock Loan Rate: 200 basis points Increased Cost of Stock Borrow: Applicable Initial Stock Loan Rate: 25 basis points Hedging Party: For all applicable Additional Disruption Events, Dealer.
Appears in 6 contracts
Samples: Warrant Agreement (AOL Inc.), Warrant Agreement (AOL Inc.), Warrant Agreement (AOL Inc.)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 510% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and or the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in good faith and in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or distribution any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that (x) the words “voting shares” in the fourth line of Section 12.1(d) of the Equity Definitions shall be replaced with the word “Shares” and (y) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in good faith and in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Shares with an ex-dividend date occurring Transaction (and, if so, may adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior to the latest Expiration Date (or, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) belowother date of cancellation, it being understood that any adjustment in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full).respect of an Announcement Event shall take into account any earlier
Appears in 6 contracts
Samples: Warrant Agreement (Atlas Air Worldwide Holdings Inc), Warrant Agreement (Atlas Air Worldwide Holdings Inc), Warrant Agreement (Atlas Air Worldwide Holdings Inc)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f10(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 20% of the total number of Shares outstanding as of the Trade Date, as determined by Calculation Agent in a commercially reasonable manner. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that either (x) also becomes Company under the Transaction following such Merger Event or Tender Offer” or (y) wholly owns the Company under the relevant Transaction following such Merger Event or Tender Offer (which Company is a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia) and fully and unconditionally guarantees the obligations of Company under the Transaction, such that, in case of either (x) or (y), the “holding period” of any Warrants or Shares delivered upon exercise thereof under Rule 144 of the Securities Act does not, as reasonably determined by the Calculation Agent, commence after the Trade Date”. Consequence of Merger Events: Any cash dividend or distribution Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 10(h)(ii)(B) of this Confirmation, the provisions of Section 10(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Component Adjustment (Calculation Agent Determination). Consequence of Tender Offers: Tender Offer: Applicable; provided that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 10(h)(ii)(A) of this Confirmation, the provisions of Section 10(h)(ii)(A) will apply; provided, further that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the word “shall” in the second line shall be replaced with “may” and the fifth and sixth lines shall be deleted in their entirety and replaced with the words “economic effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring or the Warrants”, and (z) for the avoidance of doubt, the Calculation Agent may in its commercially reasonable discretion determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly, taking into account solely changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or the Warrants whether prior to or after the Announcement Event) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Article 12 of the Equity Definitions is applicable.
Appears in 5 contracts
Samples: Warrant Agreement (Integra Lifesciences Holdings Corp), Warrant Agreement (Integra Lifesciences Holdings Corp), Warrant Agreement (Integra Lifesciences Holdings Corp)
Additional Terms applicable to the Transaction. Adjustments applicable to the TransactionWarrants: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction: Any cash dividend New Shares: Section 12.1(i) of the Equity Definitions is hereby amended by inserting immediately prior to the period the phrase “and (iii) of an entity or distribution person organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.1(b) of the Equity Definitions or Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination). Consequence of Tender Offers: Tender Offer: Applicable; provided however that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination) Additional Disruption Events: Change in Law: Applicable; provided that Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby modified by inserting the following two phrases at the end of such Section: “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above, must be available on commercially reasonable pricing terms, as anticipated on the Trade Date; provided that the scheduled exercise or scheduled expiration of call options on the Shares (with an ex-dividend a Trade Date of even date occurring on or herewith) sold by Dealer to Company in accordance with the terms of such call options shall not provide the sole basis for the occurrence of a Hedging Disruption Event.”
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby modified by inserting in the third line thereof, after the Trade Date and on words “to terminate the Transaction”, the following words: “or prior to a portion of the latest Expiration Date (orTransaction affected by such Hedging Disruption”. Increased Cost of Hedging: Not Applicable Loss of Stock Borrow: Applicable Maximum Stock Loan Rate: 200 basis points Increased Cost of Stock Borrow: Applicable Initial Stock Loan Rate: 100 basis points Hedging Party: For all applicable Additional Disruption Events, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Dealer.
Appears in 4 contracts
Samples: Warrant Agreement (Gilead Sciences Inc), Warrant Agreement (Gilead Sciences Inc), Warrant Agreement (Gilead Sciences Inc)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 510% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and Warrants, the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in good faith and in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or distribution any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that (x) the words “voting shares” in the fourth line of Section 12.1(d) of the Equity Definitions shall be replaced with the word “Shares” and (y) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in good faith and in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Shares with an ex-dividend date occurring Transaction (and, if so, may adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. Announcement Event: (ori) The public announcement by any entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer or (y) the intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (iii) any Approval Deficit subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are owed pursuant to Section 9(j)(ii) below and/or not immediately re-listed, re-traded or re-quoted on any Deficit of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are owed pursuant to Section 9(p)(ii) belowimmediately re-listed, in either casere-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such later date exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that (i) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”, (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”, (iii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by immediately following the word “Transaction”, adding the phrase “in the manner contemplated by the Hedging Party on which Company’s the Trade Date” and (iv) Section 12.9(a)(ii)(Y) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “Transaction” with the words “(including, without limitation, due to any increase in tax liability, decrease in tax benefit or other adverse effect on its tax position, imposition or increase of amount of capital required by it or any entity controlling it, or imposition or increase of amount of collateral required or expected to be maintained)”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following language at the end of such Section: “, provided that any such inability that occurs solely due to the deterioration of the creditworthiness of the Hedging Party shall not be deemed a Hedging Disruption. For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”. Increased Cost of Hedging: Applicable Loss of Stock Borrow: Applicable Maximum Stock Loan Rate: 100 basis points per annum Increased Cost of Stock Borrow: Applicable Initial Stock Loan Rate: 0 basis points until June 1, 2022 and 25 basis points thereafter. Hedging Party: For all applicable Additional Disruption Events, Dealer. The Hedging Party shall at all times act in good faith and in a commercially reasonable manner; provided that nothing herein shall limit or alter, or be deemed to limit or alter, the ability of Dealer (whether acting as Dealer, the Hedging Party, the Determining Party or the Calculation Agent) to hedge its obligations under this the Transaction have been satisfied in full)a manner it deems appropriate, as determined by Dealer in its sole discretion. The parties agree that they will comply with the provisions set forth in the second paragraph under “Calculation Agent” below.
Appears in 3 contracts
Samples: Warrant Agreement (Atlas Air Worldwide Holdings Inc), Warrant Agreement (Atlas Air Worldwide Holdings Inc), Warrant Agreement (Atlas Air Worldwide Holdings Inc)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants Warrants, the Warrant Entitlement and the Warrant Entitlementcomposition of the Shares; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 12.5% of total Shares outstanding per annum. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f9(e) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary Dividend: Any cash dividend or distribution on For the Shares with an ex-dividend date occurring on or after avoidance of doubt, Calculation Agent Adjustment and the Trade Date and on or prior provisions in Section 9(e) of this Confirmation shall continue to apply until the latest Expiration Date obligations of the parties (or, if including any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed obligations of Company pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations of this Confirmation) under this the Transaction have been satisfied in full. Extraordinary Events applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia.” Consequence of Merger Events: Merger Event: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Announcement Event: If (x) an Announcement Date occurs in respect of a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or Tender Offer, (y) Company makes a public announcement of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (z) there occurs any subsequent public announcement of a change to a transaction or intention that is the subject of an announcement of the type described in clause (x) or (y) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention) (in each case, whether such announcement is made by Company or a third party) (any event described in clause (x), (y) or (z), an “Announcement Event”), then on or after the date of the Announcement Event and prior to the Expiration Date, any Early Termination Date and/or any other date of cancellation (the “Announcement Event Adjustment Date”) in respect of each Warrant, the Calculation Agent will determine the cumulative economic effect on such Warrant of the Announcement Event (without duplication in respect of any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement, regardless of whether the Announcement Event actually results in a Merger Event or Tender Offer, and taking into account such factors as the Calculation Agent may determine, including, without limitation, changes in volatility, expected dividends, stock loan rate or liquidity or any Share price discontinuity relevant to the Shares or the Transaction, whether prior to or after the Announcement Event or for any period of time, including, without limitation, the period from the Announcement Event to the relevant Announcement Event Adjustment Date; provided that such period of time results in a commercially reasonable adjustment, as determined by the Calculation Agent by reference to the effect of such event on the Hedging Party, assuming that the Dealer maintains a commercially reasonable hedge position). If the Calculation Agent determines that such economic effect on any Warrant is material, then on the Announcement Event Adjustment Date for such Warrant, the Calculation Agent may make such adjustment to the exercise, settlement, payment or any other terms of such Warrant as the Calculation Agent determines appropriate to account for such cumulative economic effect. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. Announcement Date: The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof and (v) inserting the word “potential” following the words “in the case of a” at the beginning of clauses (i) and (ii) therein. Modified Calculation Agent Adjustment: If, in respect of any Merger Event to which Modified Calculation Agent Adjustment applies, the adjustments to be made in accordance with Section 12.2(e)(i) of the Equity Definitions would result in Company being different from the issuer of the Shares, then with respect to such Merger Event, as a condition precedent to the adjustments contemplated in Section 12.2(e)(i) of the Equity Definitions, Dealer, Company and the issuer of the Shares shall, prior to the Merger Date, have entered into such documentation containing representations, warranties and agreements relating to securities law and other issues as requested by Dealer that Dealer has determined, in its commercially reasonable discretion, to be reasonably necessary or appropriate to allow Dealer to continue as a party to the Transaction, as adjusted under Section 12.2(e)(i) of the Equity Definitions, and to preserve its commercially reasonable hedging or hedge unwind activities in connection with the Transaction in a manner compliant with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and if such conditions are not met or if the Calculation Agent determines that no adjustment that it could make under Section 12.2(e)(i) of the Equity Definitions will produce a commercially reasonable result, then the consequences set forth in Section 12.2(e)(ii) of the Equity Definitions may apply at Dealer’s commercially reasonable discretion. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii) by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and (iii) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the phrase “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following sentence at the end of such Section: For the avoidance of doubt, (i) the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk, and (ii) any such transactions or assets referred to in clause (A) or (B) above must be available on commercially reasonable pricing terms.”; and
Appears in 1 contract
Samples: Warrant Agreement (AOL Inc.)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant EntitlementEntitlement in a commercially reasonable manner. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction: Any cash dividend New Shares: Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or distribution listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply; provided further that the definition of “Tender Offer” in Section 12.1(d) of the Equity Definitions is hereby amended by replacing the phrase “greater than 10% and less than 100% of the outstanding voting shares of the Issuer” with “(x) greater than 15% and less than 100% of the outstanding Shares in respect of any Tender Offer made by any entity or person other than the Issuer or any subsidiary thereof or (y) greater than 20% and less than 100% of the outstanding Shares in respect of any Tender Offer made by the Issuer or any subsidiary thereof”. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the word “shall” in the second line shall be replaced with “may” and the fifth and sixth lines shall be deleted in their entirety and replaced with the words “effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring or the Warrants”, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Article 12 of the Equity Definitions is applicable.
Appears in 1 contract
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; , provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases adjustment shall be made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Eventsgood faith and in a commercially reasonable manner. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices after taking into account commercially reasonable and customary adjustments, if any, to the terms of such accelerated share repurchases, forward contracts or similar transactions) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer or other nationally recognized financial institution), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 20% of total Shares outstanding per annum and the aggregate number of such Shares repurchased during the term of the Transaction does not exceed 11.8 million Shares. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia”. Consequence of Merger Events: Any cash dividend or distribution Merger Event: Applicable, provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) (subject, for the avoidance of doubt, to Section 9(j) below) Share-for-Combined: Component Adjustment (Calculation Agent Determination) Consequence of Tender Offers: Tender Offer: Applicable; provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply; and provided further that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that, in respect of an Announcement Event, (w) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) clause (ii) of such Section 12.3(d) shall be deemed deleted, (y) the word “shall” in the second line shall be replaced with “may” and the fifth and sixth lines shall be deleted in their entirety and replaced with the words “effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring or the Warrants”, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly in a commercially reasonable manner) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) belowwhich Article 12 of the Equity Definitions is applicable, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)as modified herein.
Appears in 1 contract
Samples: Warrant Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; , provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases adjustment shall be made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Eventsgood faith and in a commercially reasonable manner. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices after taking into account commercially reasonable and customary adjustments, if any, to the terms of such accelerated share repurchases, forward contracts or similar transactions) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer or other nationally recognized financial institution), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 20% of total Shares outstanding per annum and the aggregate number of such Shares repurchased during the term of the Transaction does not exceed 12.5 million Shares. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia”. Consequence of Merger Events: Any cash dividend or distribution Merger Event: Applicable, provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) (subject, for the avoidance of doubt, to Section 9(j) below) Share-for-Combined: Component Adjustment (Calculation Agent Determination) Consequence of Tender Offers: Tender Offer: Applicable; provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply; and provided further that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions, provided that any adjustments be made in good faith and in a commercially reasonable manner; provided further that, in respect of an Announcement Event, (w) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) clause (ii) of such Section 12.3(d) shall be deemed deleted, (y) the word “shall” in the second line shall be replaced with “may” and the fifth and sixth lines shall be deleted in their entirety and replaced with the words “effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring or the Warrants”, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, adjust the terms of the Transaction accordingly in a commercially reasonable manner) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) belowwhich Article 12 of the Equity Definitions is applicable, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)as modified herein.
Appears in 1 contract
Samples: Warrant Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubtdoubt and without limiting the generality of Section 11.2 of the Equity Definitions, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, (a) any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity DefinitionsDefinitions and (b) none of the following shall constitute Potential Adjustment Events: (i) repurchases of Shares from directors, officers and employees in connection with the exercise of options or tax withholding obligations, (ii) (A) repurchases of Shares through a dealer pursuant to accelerated share repurchases, forward contracts or similar transactions (including without limitation any discount to average volume-weighted average prices) that are entered into at prevailing market prices and in accordance with customary market terms for transactions of such type to repurchase the Shares or (B) open market Share repurchases at prevailing market prices (clause (A) and clause (B) together, “Share Repurchases”), for which the aggregate purchase price, taken together with the aggregate purchase price for all other such Share Repurchases made in the immediately preceding twelve-month period (other than any call options purchased on the date hereof or within 18 days of the date hereof, in each case, from Dealer or any other financial institution to whom warrants with terms substantially identical to the Transaction are being issued), does not exceed 10% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase), (iii) the termination or settlement by the Issuer of any call options or Share Repurchases entered into in accordance with clause (ii) of this sentence, (iv) repurchases, conversions or other settlement of the Company’s 0.500% Convertible Senior Notes due 2020 and (v) repurchases, conversions or other settlement of the Company’s 2.625% Convertible Senior Notes due 2040. Extraordinary DividendEvents applicable to the Transaction:
Section 12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or distribution any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that (x) the words “voting shares” in the fourth line of Section 12.1(d) of the Equity Definitions shall be replaced with the word “Shares”, (y) Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” and (z) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (i) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (ii) the Calculation Agent shall determine whether the relevant Announcement Event has had a material economic effect on the Shares with an ex-dividend date occurring Transaction (and, only if so, adjust the terms of the Transaction accordingly to account for such economic effect) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, (iii) any adjustment in respect of a particular Announcement Event shall take into account any earlier adjustment relating to the transaction or intention underlying such Announcement Event and on or (iv) if the Calculation Agent shall make any adjustment to the terms of a Warrant upon the occurrence of a particular Announcement Event, then the Calculation Agent shall make an adjustment to the terms of that same Warrant upon any subsequent announcement, prior to the latest final Expiration Date (oror any earlier date of termination or cancellation), of the abandonment of any such transaction or event that gave rise to the original Announcement Event; provided that that, in making any adjustment as a result of an Announcement Event, the Calculation Agent shall take into account the Hedging Party’s commercially reasonable Hedge Positions. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
(i) The public announcement by any entity of any transaction or event that, if completed, would constitute a Merger Event or Tender Offer or (y) the intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (iii) any Approval Deficit Shares are owed subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded. Notwithstanding anything to the contrary herein, any adjustment to the terms of the Transaction, and the determination of any amounts due upon cancellation or termination of the Warrants as a result of a Merger Event, Tender Offer or Announcement Event shall take into account, and shall not duplicate the economic effects of, any other adjustment or termination or cancellation valuation hereunder (including, without limitation, any termination or cancellation pursuant to Section 9(j)(ii9(h)(ii) below and/or any Deficit below). Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are owed pursuant to Section 9(p)(ii) belownot immediately re-listed, in either casere-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such later date exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that (i) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute),” and (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on which Company’s obligations under this the Trade Date” and (b) inserting the following two phrases at the end of such Section: “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction have been satisfied in full)affected by such Hedging Disruption”. Increased Cost of Hedging: Applicable Loss of Stock Borrow: Applicable Maximum Stock Loan Rate: 200 basis points Increased Cost of Stock Borrow: Applicable Initial Stock Loan Rate: 0 basis points until March 1, 2020 and 25 basis points thereafter. Hedging Party: For all applicable Additional Disruption Events, Dealer.
Appears in 1 contract
Samples: Warrant Agreement (Rovi Corp)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, (i) any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity DefinitionsDefinitions and (ii) the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, or at a commercially reasonable adjustment in relation to, prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a nationally recognized financial institution), shall not be considered a Potential Adjustment Event as long as the aggregate number of Shares repurchased during the term of the Transaction pursuant to all such transactions described in clauses (x) and (y) would not exceed 10% of the number of Shares outstanding as of the Trade Date, each as determined by Calculation Agent in a commercially reasonable manner and as adjusted by the Calculation Agent to account for any subdivision or combination with respect to the Shares. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that either (1) becomes the Company under the Transaction following such Merger Event or Tender Offer or (2) wholly owns the Company under the Transaction following such Merger Event or Tender Offer (which Company is an entity or person that is organized under the laws of the United States, any State thereof or the District of Columbia) and fully and unconditionally guarantees the obligations of Company under the Transaction”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that would otherwise constitute both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(i)(ii)(B) of this Confirmation, the provisions of Section 12.2 of the Equity Definitions will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Component Adjustment (Calculation Agent Determination) Consequence of Tender Offers: Tender Offer: Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by (i) inserting the word “similar” immediately prior to the word “event” in the second line thereof and (ii) replacing “10%” with “20%” in the third line thereof; and provided further that if an event occurs that would otherwise constitute both a Tender Offer under Section 12.1(d) of the Equity Definitions and an Additional Termination Event under Section 9(i)(ii)(A) of this Confirmation, the provisions of Section 12.3 of the Equity Definitions will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Announcement Event: If an Announcement Date occurs in respect of (x) a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or distribution Tender Offer, (y) any potential acquisition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the market capitalization of Issuer as of the relevant Announcement Date (an “Acquisition Transaction”) or (z) a transaction or event or series of transactions or events that, if completed, would lead to a Merger Event, Tender Offer or Acquisition Transaction (such occurrence, an “Announcement Event”), then on the Shares with an ex-dividend date occurring one or more occasions on or after the Trade relevant Announcement Date up to, and on including, the earliest of the Expiration Date, Early Termination Date or prior to the latest Expiration Date other date of cancellation (oreach, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full).an
Appears in 1 contract
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 510% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and Warrants, the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction: Any cash dividend New Shares: Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or distribution listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in good faith and in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that (x) the words “voting shares” in the fourth line of Section 12.1(d) of the Equity Definitions shall be replaced with the word “Shares” and (y) if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in good faith and in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Shares with an ex-dividend date occurring Transaction (and, if so, may adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. Announcement Event: (ori) The public announcement by any entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer or (y) the intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (iii) any Approval Deficit subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided that, in addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are owed pursuant to Section 9(j)(ii) below and/or not immediately re-listed, re-traded or re-quoted on any Deficit of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are owed pursuant to Section 9(p)(ii) belowimmediately re-listed, in either casere-traded or re-quoted on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors), such later date exchange or quotation system shall thereafter be deemed to be the Exchange. Additional Disruption Events: Change in Law: Applicable; provided that (i) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”, (ii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by replacing the word “Shares” with the phrase “Hedge Positions”, (iii) Section 12.9(a)(ii)(X) of the Equity Definitions is hereby amended by immediately following the word “Transaction”, adding the phrase “in the manner contemplated by the Hedging Party on which Company’s the Trade Date” and (iv) Section 12.9(a)(ii)(Y) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “Transaction” with the words “(including, without limitation, due to any increase in tax liability, decrease in tax benefit or other adverse effect on its tax position, imposition or increase of amount of capital required by it or any entity controlling it, or imposition or increase of amount of collateral required or expected to be maintained)”. Failure to Deliver: Not Applicable Insolvency Filing: Applicable Hedging Disruption: Applicable; provided that:
(i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by (a) inserting the following words at the end of clause (A) thereof: “in the manner contemplated by the Hedging Party on the Trade Date” and (b) inserting the following language at the end of such Section: “, provided that any such inability that occurs solely due to the deterioration of the creditworthiness of the Hedging Party shall not be deemed a Hedging Disruption. For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and
(ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”. Increased Cost of Hedging: Applicable Loss of Stock Borrow: Applicable Maximum Stock Loan Rate: 100 basis points per annum Increased Cost of Stock Borrow: Applicable Initial Stock Loan Rate: 0 basis points until June 1, 2022 and 25 basis points thereafter. Hedging Party: For all applicable Additional Disruption Events, Dealer. The Hedging Party shall at all times act in good faith and in a commercially reasonable manner; provided that nothing herein shall limit or alter, or be deemed to limit or alter, the ability of Dealer (whether acting as Dealer, the Hedging Party, the Determining Party or the Calculation Agent) to hedge its obligations under this the Transaction have been satisfied in full)a manner it deems appropriate, as determined by Dealer in its sole discretion. The parties agree that they will comply with the provisions set forth in the second paragraph under “Calculation Agent” below.
Appears in 1 contract
Samples: Warrant Agreement (Atlas Air Worldwide Holdings Inc)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants Warrants, the Warrant Entitlement and the Warrant Entitlementcomposition of the Shares; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 12.5% of total Shares outstanding per annum. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f9(e) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary Dividend: Any cash dividend or distribution on For the Shares with an ex-dividend date occurring on or after avoidance of doubt, Calculation Agent Adjustment and the Trade Date and on or prior provisions in Section 9(e) of this Confirmation shall continue to apply until the latest Expiration Date obligations of the parties (or, if including any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed obligations of Company pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations of this Confirmation) under this the Transaction have been satisfied in full. Extraordinary Events applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia.” Consequence of Merger Events: Merger Event: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Announcement Event: If (x) an Announcement Date occurs in respect of a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or Tender Offer, (y) Company makes a public announcement of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or (z) there occurs any subsequent public announcement of a change to a transaction or intention that is the subject of an announcement of the type described in clause (x) or (y) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention) (in each case, whether such announcement is made by Company or a third party) (any event described in clause (x), (y) or (z), an “Announcement Event”), then on or after the date of the Announcement Event and prior to the Expiration Date, any Early Termination Date and/or any other date of cancellation (the “Announcement Event Adjustment Date”) in respect of each Warrant, the Calculation Agent will determine the cumulative economic effect on such Warrant of the Announcement Event (without duplication in respect of any other adjustment or cancellation valuation made pursuant to this Confirmation, the Equity Definitions or the Agreement, regardless of whether the Announcement Event actually results in a Merger Event or Tender Offer, and taking into account such factors as the Calculation Agent may determine, including, without limitation, changes in volatility, expected dividends, stock loan rate or liquidity or any Share price discontinuity relevant to the Shares or the Transaction, whether prior to or after the Announcement Event or for any period of time, including, without limitation, the period from the Announcement Event to the relevant Announcement Event Adjustment Date; provided that such period of time results in a commercially reasonable adjustment, as determined by the Calculation Agent by reference to the effect of such event on the Hedging Party, assuming that the Dealer maintains a commercially reasonable hedge position). If the Calculation Agent determines that such economic effect on any Warrant is material, then on the Announcement Event Adjustment Date for such Warrant, the Calculation Agent may make such adjustment to the exercise, settlement, payment or any other terms of such Warrant as the Calculation Agent determines appropriate to account for such cumulative economic effect. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. Announcement Date: The definition of “Announcement Date” in Section 12.1 of the Equity Definitions is hereby amended by (i) replacing the words “a firm” with the word “any” in the second and fourth lines thereof, (ii) replacing the word “leads to the” with the words “, if completed, would lead to a” in the third and the fifth lines thereof, (iii) replacing the words “voting shares” with the word “Shares” in the fifth line thereof, (iv) inserting the words “by any entity” after the word “announcement” in the second and the fourth lines thereof and (v) inserting the word “potential” following the words “in the case of a” at the beginning of clauses (i) and (ii) therein.
Appears in 1 contract
Samples: Warrant Agreement (AOL Inc.)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) repurchases by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) neither open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “nor Share repurchases in privately negotiated transactions entered into pursuant to that certain Master Confirmation relating to Uncollared Accelerated Share Repurchases”), for which dated as of April 25, 2014, between Company and Citibank, N.A., and the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) first Supplemental Confirmation related thereto shall not be considered Potential Adjustment Events. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant EntitlementEntitlement to account for the economic effect of the event on the Transaction, with such adjustments made by reference to the effect of such event assuming that the Dealer maintains a commercially reasonable hedge position. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, ,whether or not extraordinary, shall be governed by Section 9(f) of 9(f)of this Confirmation in lieu of Article 10 or Section 11.2(c) of the ofthe Equity Definitions. Extraordinary DividendEvents applicable to the Transaction: Any cash dividend New Shares: Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or distribution listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, the provisions of Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, the provisions of Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Announcement Event: If an Announcement Date occurs in respect of a Merger Event (for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) or Tender Offer (such occurrence, an “Announcement Event”), then on the earliest of the Expiration Date, Early Termination Date or other date of cancellation (the “Announcement Event Adjustment Date”) in respect of each Warrant, the Calculation Agent will determine the economic effect on such Warrant of the relevant event (regardless of whether the Announcement Event actually results in a Merger Event or Tender Offer, and taking into account such factors as the Calculation Agent may determine, including, without limitation, changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring on or the Transaction whether prior to or after the Trade Announcement Event or for any period of time, including, without limitation, the period from the Announcement Event to the relevant Announcement Event Adjustment Date). If the Calculation Agent determines that such economic effect on any Warrant is material, then on the Announcement Event Adjustment Date and on for such Warrant, the Calculation Agent may make such adjustment to the exercise, settlement, payment or any other terms of such Warrant as the Calculation Agent determines appropriate to account for such economic effect, which adjustment shall be effective immediately prior to the latest Expiration Date (orexercise, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) belowtermination or cancellation of such Warrant, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)as the case may be.
Appears in 1 contract
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) Share repurchases by or on behalf Company, whether pursuant to (x) Rule 10b-18 of the Company Securities Exchange Act of Shares through a dealer 1934, as amended (the “Exchange Act”), or Rule 10b5-1 of the Exchange Act or (y) pursuant to forward contracts, contracts or accelerated share stock repurchase contracts or similar derivatives transactions that are entered into on customary terms, at prevailing market prices, volume-average weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) togetherthereto, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events; provided further that any such repurchase described in prong (x) of the immediately preceding clause or entry into any such forward contracts or accelerated stock repurchase contracts or similar derivative transaction described in prong (y) of the immediately preceding clause shall constitute a Potential Adjustment Event if, after giving effect to such repurchase or transaction, the aggregate number of Shares repurchased during the term of the Transaction pursuant to all such repurchases or transactions described in prong (x) and (y) of the immediately preceding clause would exceed 30% of the number of Shares outstanding as of the Trade Date, as determined by the Calculation Agent. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or distribution Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof; provided further that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event,” shall be inserted prior to the word “which” in the seventh line, and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Shares with an ex-dividend date occurring Transaction (and, if so, adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Article 12 of the Equity Definitions is applicable.
Appears in 1 contract
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) Share repurchases by or on behalf Company, whether pursuant to (x) Rule 10b-18 of the Company Securities Exchange Act of Shares through a dealer 1934, as amended (the “Exchange Act”), or Rule 10b5-1 of the Exchange Act or (y) pursuant to forward contracts, contracts or accelerated share stock repurchase contracts or similar derivatives transactions that are entered into on customary terms, at prevailing market prices, volume-average weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) togetherthereto, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events; provided further that any such repurchase described in prong (x) of the immediately preceding clause or entry into any such forward contracts or accelerated stock repurchase contracts or similar derivative transaction described in prong (y) of the immediately preceding clause shall constitute a Potential Adjustment Event if, after giving effect to such repurchase or transaction, the aggregate number of Shares repurchased during the term of the Transaction pursuant to all such repurchases or transactions described in prong (x) and (y) of the immediately preceding clause would exceed 30% of the number of Shares outstanding as of the Trade Date, as determined by the Calculation Agent. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction:
Section 12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that also becomes Company under the Transaction following such Merger Event or Tender Offer”. Consequence of Merger Events: Any cash dividend Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(h)(ii)(B) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or distribution Section 9(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%” in the third line thereof; provided further that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(h)(ii)(A) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 9(h)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” and (y) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had a material effect on the Shares with an ex-dividend date occurring Transaction (and, if so, adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
(ori) The public announcement by Issuer, a subsidiary, affiliate, agent or representative of Issuer, or any Valid Third Party Entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any Approval Deficit Shares are owed pursuant potential acquisition or disposal by Issuer and/or its subsidiaries where the aggregate consideration exceeds the Relevant Threshold (as specified in the Schedule hereto) of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) the intention to Section 9(j)(iienter into a Merger Event or Tender Offer or a Transformative Transaction, (ii) below and/or any Deficit Shares are owed pursuant the public announcement by Issuer of an intention to Section 9(p)(iisolicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or a Transformative Transaction or (iii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full).any
Appears in 1 contract
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that Adjustment (for the parties hereto agree that any (i) repurchases avoidance of doubt, as amended by or on behalf of the Company of Shares through a dealer pursuant to forward contracts, accelerated share repurchase contracts or similar derivatives transactions that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) together, “Share Repurchases”Section 10(g), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events). For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement; provided that the parties agree that (x) open market Share repurchases at prevailing market prices or (y) accelerated share repurchases, forward contracts or similar transactions (at, below or not significantly above prevailing market prices) that are entered into in accordance with customary, arm’s length terms for transactions of such type to repurchase the Shares (and, in the case of this clause (y), through a dealer), shall not be considered a Potential Adjustment Event as long as the number of Shares so repurchased does not exceed 7% of total Shares outstanding per annum and the aggregate number of such Shares repurchased during the term of the Transaction does not exceed 5,905,202 Shares, as adjusted by the Calculation Agent to account for any subdivision or combination with respect to the Shares. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f10(e) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary DividendEvents applicable to the Transaction: Any cash dividend New Shares: Section 12.1(i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or distribution listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the laws of the United States, any State thereof or the District of Columbia that either (x) also becomes Company under the Transaction following such Merger Event or Tender Offer” or (y) wholly owns the Company under the relevant Transaction following such Merger Event or Tender Offer (which Company is a corporation that is organized under the laws of the United States, any State thereof or the District of Columbia) and fully and unconditionally guarantees the obligations of Company under the Transaction”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 12.1(b) of the Equity Definitions and an Additional Termination Event under Section 10(h)(ii)(B) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.2 of the Equity Definitions or Section 10(h)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that if an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 10(h)(ii)(A) of this Confirmation, Dealer may elect, in its commercially reasonable judgment, whether the provisions of Section 12.3 of the Equity Definitions or Section 10(h)(ii)(A) will apply; provided, further that (x) Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%” and (y) the purchase of, or right to obtain, Shares issued by the Company in a new, primary issuance or offering by the Company (whether in connection with capital raising, an acquisition or otherwise) shall not be a Tender Offer. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (w) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) the fifth and sixth lines shall be deleted in their entirety and replaced with the words “effect on the Warrants of such Announcement Event solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares with an ex-dividend date occurring or the Warrants”, (y) the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event,” shall be inserted prior to the word “which” in the seventh line and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had a material effect on the Transaction (and, if so, shall adjust the terms of the Transaction accordingly) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and on or prior and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the latest Expiration Date (orsame Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, if any Approval Deficit Shares are owed pursuant to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Article 12 of the Equity Definitions is applicable.
Appears in 1 contract
Samples: Warrant Agreement (CONMED Corp)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any :
(i) open market Share repurchases at prevailing market prices, (ii) repurchases of shares from directors, officers and employees in connection with the exercise of options or tax withholding obligations, (iii) the termination or settlement by the Issuer of any call options, forward purchases or on behalf accelerate share purchases agreements with respect to the Shares, (iv) repurchases, conversions or other settlement of the Company Company’s 1.375% Convertible Senior Notes due 2020, (v) underwritten public offerings by the Issuer of Shares its securities, and (vi) Share repurchases through a dealer pursuant to forward contracts, accelerated share repurchase repurchases, forward contracts or similar derivatives transactions (including without limitation any discount to average VWAP prices) that are entered into at prevailing market prices, volume-weighted average prices or discounts thereto and on in accordance with customary market terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) togetherShares, “Share Repurchases”)in each case, for which the an aggregate purchase price that, taken together with the aggregate purchase price for all other Share Repurchases made such repurchases under this clause (vi) (other than any call options purchased on the date hereof or within 18 days of the date hereof, in each case, from Dealer or any other financial institution to whom warrants with terms substantially identical to the immediately preceding twelve-month periodTransaction are being issued), does not exceed 515% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchasethe applicable transaction). Extraordinary Events applicable to the Transaction: New Shares: Section 12.1(i) shall not be considered Potential Adjustment Events. For of the avoidance Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of doubtthe New York Stock Exchange, in making any adjustments The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors)” and (b) by inserting immediately prior to the period the phrase “and (iii) of an entity or person that is a corporation organized under the Equity Definitions, the Calculation Agent may make adjustments, if any, to any one or more laws of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoingUnited States, any cash dividends State thereof or distributions on the Shares, whether District of Columbia that also becomes Company under the Transaction following such Merger Event or not extraordinary, shall be governed by Tender Offer”. Consequence of Merger Events: Merger Event: Applicable; provided that if an event occurs that constitutes both a Merger Event under Section 9(f12.1(b) of the Equity Definitions and an Additional Termination Event under Section 9(g)(ii)(B) of this Confirmation Confirmation, the provisions of Section 9(g)(ii)(B) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Cancellation and Payment (Calculation Agent Determination) Share-for-Combined: Cancellation and Payment (Calculation Agent Determination); provided that Dealer may elect, in lieu its commercially reasonable judgment, Component Adjustment (Calculation Agent Determination) for all or any portion of Article 10 or the Transaction. Consequence of Tender Offers: Tender Offer: Applicable; provided that Section 11.2(c12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “20%”. If an event occurs that constitutes both a Tender Offer under Section 12.1(d) of the Equity Definitions and Additional Termination Event under Section 9(g)(ii)(A) of this Confirmation, the provisions of Section 9(g)(ii)(A) will apply. Share-for-Share: Modified Calculation Agent Adjustment Share-for-Other: Modified Calculation Agent Adjustment Share-for-Combined: Modified Calculation Agent Adjustment Consequences of Announcement Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions. Extraordinary Dividend: Any cash dividend or distribution ; provided that in respect of an Announcement Event, (i) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (ii) the Calculation Agent shall determine whether the relevant Announcement Event has had a material economic effect on the Shares with an ex-dividend date occurring Transaction (and, only if so, adjust the terms of the Transaction accordingly to account for such economic effect) on one or more occasions on or after the Trade date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, (iii) any adjustment in respect of a particular Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and on or (iv) if the Calculation Agent shall make any adjustment to the terms of a Warrant upon the occurrence of a particular Announcement Event, then the Calculation Agent shall make an adjustment to the terms of that same Warrant upon any subsequent announcement, prior to the latest final Expiration Date (oror any earlier date of termination or cancellation), if of the abandonment of any Approval Deficit Shares are owed pursuant such transaction or event that gave rise to Section 9(j)(ii) below and/or any Deficit Shares are owed pursuant the original Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to Section 9(p)(ii) below, in either case, such later date on which Company’s obligations under this Transaction have been satisfied in full)Article 12 of the Equity Definitions is applicable.
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Samples: Warrant Agreement (Brocade Communications Systems Inc)
Additional Terms applicable to the Transaction. Adjustments applicable to the Transaction: Method of Adjustment: Calculation Agent Adjustment; provided that the parties hereto agree that any (i) Share repurchases by or on behalf Counterparty, whether pursuant to (x) Rule 10b-18 of the Company Securities Exchange Act of Shares through a dealer 1934, as amended (the “Exchange Act”), or Rule 10b5-1 of the Exchange Act or (y) pursuant to forward contracts, contracts or accelerated share stock repurchase contracts or similar derivatives transactions that are entered into on customary terms, at prevailing market prices, volume-average weighted average prices or discounts thereto and on customary terms for transactions of such type to repurchase Shares or (ii) open market Share repurchases by or on behalf of the Company at prevailing market prices (clause (i) and clause (ii) togetherthereto, “Share Repurchases”), for which the aggregate purchase price together with the aggregate purchase price for all other Share Repurchases made in the immediately preceding twelve-month period, does not exceed 5% of the market capitalization of the Issuer (measured at the time of execution of such Share Repurchase) shall not be considered Potential Adjustment Events; provided further that the entry into any such forward contracts or accelerated stock repurchase contracts or similar derivative transaction described in prong (y) of the immediately preceding proviso shall constitute a Potential Adjustment Event only to the extent that, after giving effect to such transaction, the aggregate number of Shares repurchased during the term of the Transaction pursuant to such transactions described in prong (y) of the immediately preceding proviso would exceed 20% of the number of Shares outstanding as of the Trade Date, as determined by Calculation Agent. For the avoidance of doubt, in making any adjustments under the Equity Definitions, the Calculation Agent may make commercially reasonable adjustments, if any, to any one or more of the Strike Price, the Number of Warrants, the Daily Number of Warrants and the Warrant Entitlement. Notwithstanding the foregoing, any cash dividends or distributions on the Shares, whether or not extraordinary, shall be governed by Section 9(f) of this Confirmation in lieu of Article 10 or Section 11.2(c) of the Equity Definitions. Extraordinary Dividend: Any cash dividend Events applicable to the Transaction:
12.1 (i) of the Equity Definitions is hereby amended (a) by deleting the text in clause (i) thereof in its entirety (including the word “and” following clause (i)) and replacing it with the phrase “publicly quoted, traded or distribution listed (or whose related depositary receipts are publicly quoted, traded or listed) on any of the Shares with an ex-dividend date occurring on New York Stock Exchange, The Nasdaq Global Select Market, The Nasdaq Global Market or after the Trade Date The Nasdaq Capital Market (or their respective successors)” and on or (b) by inserting immediately prior to the latest Expiration Date period the phrase “and (oriii) of an entity or person that is a corporation organized under the laws of the United States, if any Approval Deficit Shares are owed pursuant to Section 9(j)(iiState thereof or the District of Columbia that (x) below and/or any Deficit Shares are owed pursuant to Section 9(p)(iialso becomes Counterparty under the Transaction or (y) belowdirectly or indirectly wholly owns Counterparty and fully and unconditionally guarantees Counterparty’s obligations under the Transaction, in either case, following such later date on which Company’s obligations under this Transaction have been satisfied in full).Merger Event or Tender Offer”. Consequence of Merger Events:
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