Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (f) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity Definitions. Consequences of Merger Events/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options and the Option Entitlement; provided, however, that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election; and provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion.
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Dilution Adjustment Provisions. Sections 14.04(a5.05(A)(i), (bA)(ii), (cA)(iii), (dA)(iv), (e) and (fA)(v) and Section 14.05 5.05(H) of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of “Merger Common Stock Change Event” following the definition of “Reverse Merger” therein) and (b) any occurrence in Section 5.09 of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 5.05(A)(v) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences of Merger Events/ Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that (x) such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded ProvisionProvision and (y) the Calculation Agent shall limit or alter any such adjustment referenced in this paragraph to maintain the fair value of the Transaction as a result of such adjustment; and, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment pursuant to the terms of the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 5.09 of the Indenture), then the Calculation Agent will determine the adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be the Issuer or will not be a corporationcorporation organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole commercially reasonable election; and provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion.. 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, The Nasdaq Global Market or The Nasdaq Capital 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, The Nasdaq Global Market or The Nasdaq Capital 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) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position”, (iii) replacing the parenthetical beginning after the word “regulation” in the second line thereof 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 (iv) adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” immediately following the word “Transaction” in clause (X) thereof. Failure to Deliver: Applicable Hedging Disruption: Applicable; provided that:
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Dilution Adjustment Provisions. Sections 14.04(a[ ][( ), (b( ), (c( ), (d), (e( ) and (f) ( )]29 and Section 14.05 [ ]30 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of [“Merger Specified Corporate Event” following the definition of “Reverse Merger” therein) and (b) any occurrence ”] in Section [ ]31 of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) Section [ ]32 of the definition of “Fundamental Change” in Section 1.01 Indenture. 29 Include cross-reference to specific paragraphs of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) section of the Equity DefinitionsIndenture containing anti-dilution adjustments to the Conversion Rate. 30 Include cross-reference to specific paragraph of the section of the Indenture providing for adjustments where a Conversion Rate adjustment occurs during a period over which VWAP, conversion value, settlement amount or closing price is calculated. 31 Include cross-reference to the section of the Indenture describing consequences of merger events. 32 Include cross-reference to the section of the Indenture describing consequences of tender offers. Consequences of Merger Events/ Events/Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporationcorporation organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole commercially reasonable election; and provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. 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, (v) 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”, (w) the word “shall” in the second line shall be replaced with “shall, if the Calculation Agent determines that such Announcement Event has had a material economic effect on the Transaction”, (x) 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, (y) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)” and (z) for the avoidance of doubt, the Calculation Agent may determine whether the relevant Announcement Event has had an economic effect on the Transaction (and, if so, may adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date 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 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.
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Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a any event or condition set forth in the definition of “Share Exchange Event (as defined Event” in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 14.04(e) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences Consequence of Merger Events/ Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding an adjustment in respect of any adjustment required to be made under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlement; providedexercise, however, settlement or payment for the Transaction (as determined by the Calculation Agent acting in good faith and in a commercially reasonable manner by reference to the relevant provisions of the Indenture); provided that (x) such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; Provision and (y) the Calculation Agent shall limit or alter any such adjustment referenced in this paragraph to maintain the fair value of the Transaction as a result of such adjustment; and provided further that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment pursuant to the terms of the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 10.01(g) of the Indenture or any supplemental indenture entered into pursuant to Section 14.07(a) of the Indenture), then the Calculation Agent acting in good faith and in a commercially reasonable manner will determine the adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or Columbia, (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer Offer, will not be a corporation“Qualified Successor Entity” (as defined in the Indenture, as if references in such definition to a “Business Combination Event” were instead references to such Merger Event or Tender Offer, as the case may be) or (iii) if the Counterparty to the Transaction following such Merger Event or Tender Offer would not be the Issuer following such Merger Event or Tender Offer, unless, in the case of this clause (iii), Counterparty and the issuer of the Shares have entered into such documentation containing representations, warranties and agreements related to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer 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, then, in either each case, Dealer, in its commercially reasonable discretion, may elect for Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole electionto apply. 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 thatthat 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 doubtdoubt and without limitation, adjustments (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”. Notwithstanding anything to the contrary in the Equity Definitions (x) a Change in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions shall not constitute a Change in Law and instead shall constitute an Increased Cost of Hedging as described in Section 12.9(a)(vi) of the Equity Definitions and (y) any determination of whether a Change in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions has occurred shall be made pursuant consistently applied by the affected party across transactions similar to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise Transaction and for counterparties similar to an Early Conversion.the relevant counterparty. Failure to Deliver: Applicable Hedging Disruption: Applicable; provided that:
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Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) of the definition of “Fundamental ChangeMerger Event” in Section 1.01 14.07 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Tender Offers: Not applicable. Consequences of Merger Events/ Tender OffersEvents : Notwithstanding Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender OfferEvent, the Calculation Agent Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event)Shares, Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided, however, that such no adjustment shall be made without regard to in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if. Nationalization, with respect to a Merger Event Insolvency or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election); and provided further that, for the avoidance of doubt, adjustments shall be made pursuant in addition to the provisions set forth above regardless of whether 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 Merger Event of the New York Stock Exchange, The NASDAQ Global Select Market or Tender Offer gives rise 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 an Early Conversionbe the Exchange.
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Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of “Merger Event” following the definition of “Reverse Merger” thereinin Section 14.07(a) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 14.04(e) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences of Merger Events/ Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent Agent, in a commercially reasonable manner, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction to the extent an analogous adjustment is required to be made pursuant to the Indenture in connection with such Merger Event or Tender Offer, as the case may be, subject to the second paragraph under “Method of Adjustment”; provided, however, that no such adjustment shall be made without regard to in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that, in respect of any election by the holders of Shares with respect to the consideration due upon consummation of any Merger Event, the Calculation Agent shall have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to compensate Dealer for any losses (including, without limitation, market losses customary for transactions similar to the Transaction with counterparties similar to Counterparty) solely as a result of any mismatch between its Hedge Position, assuming Dealer maintains a commercially reasonable Hedge Position, and the type and amount of consideration actually paid or issued to the holders of Shares in respect of such Merger Event; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not treated as a corporation for U.S. federal income tax purposes or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be treated as a corporationcorporation for U.S. federal income tax purposes or will not be organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole electioncommercially reasonable discretion; and provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. 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. 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 in such Section 12.3(d) to “Tender Offer” shall be replaced by references to “Announcement Event” and references in such Section 12.3(d) to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (x) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” in such Section 12.3(d) shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, (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 of such Section 12.3(d), and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, shall, acting in good faith and in a commercially reasonable manner, adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that (1) any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and (2) such adjustment shall be made without duplication of any other adjustment hereunder. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions, as modified in this paragraph, is applicable.
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Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of “Merger Event” following the definition of “Reverse Merger” thereinin Section 14.07(a) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 14.04(e) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences Consequence of Merger Events/ Events / Tender Offers: Offers Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding an adjustment in respect of any adjustment required to be made under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlement; providedexercise, however, settlement or payment for the Transaction (as determined by the Calculation Agent acting in good faith and in a commercially reasonable manner by reference to the relevant provisions of the Indenture); provided that (x) such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; Provision and (y) the Calculation Agent shall limit or alter any such adjustment referenced in this paragraph to maintain the fair value of the Transaction as a result of such adjustment; and provided further that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment pursuant to the terms of the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 10.01(c) of the Indenture or any supplemental indenture entered into pursuant to Section 14.07 of the Indenture), then the Calculation Agent acting in good faith and in a commercially reasonable manner will determine the adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement, Regular Dividend and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or Columbia, (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer Offer, will not be a corporationcorporation or (iii) if the Counterparty to the Transaction following such Merger Event or Tender Offer would not be the Issuer following such Merger Event or Tender Offer, unless, in the case of this clause (iii), Counterparty and the issuer of the Shares have entered into such documentation containing representations, warranties and agreements related to securities law and other issues as requested by Dealer that Dealer has determined, in its reasonable discretion, to be reasonably necessary or appropriate to allow Dealer 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, then, in either each case, Dealer, in its commercially reasonable discretion, may elect for Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election; to apply. Nationalization, Insolvency or Delisting: Cancellation and Payment (Calculation Agent Determination); provided further that, for the avoidance of doubt, adjustments shall be made pursuant in addition to the provisions set forth above regardless of whether 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 Merger Event of the New York Stock Exchange, The NASDAQ Global Select Market or Tender Offer gives rise 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 an Early Conversion.be the Exchange. Additional Disruption Events:
Appears in 1 contract
Samples: Call Option Transaction (Ionis Pharmaceuticals Inc)
Dilution Adjustment Provisions. Sections 14.04(aSection 14.04 (a), (b), (c), (d), (e) and (f) e), Section 14.05 and Section 14.05 14.11 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of “Merger Event” following the definition of “Reverse Merger” thereinin Section 14.07(a) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 14.04(e) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences Consequence of Merger Events/ Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding an adjustment in respect of any adjustment required to be made under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction (as determined by the Calculation Agent by reference to the relevant provisions of the Indenture); provided, however, provided that such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that, notwithstanding the foregoing, if the Calculation Agent reasonably and in good faith disagrees with any adjustment pursuant to the terms of the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 10.01(j) of the Indenture), then the Calculation Agent will determine the adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement, Regular Dividend and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer Offer, will not be a corporationcorporation or will not be the Issuer following such Merger Event or Tender Offer, thenthen Dealer, in either caseits commercially reasonable discretion, may elect for Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole electionto apply. 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 thatthat 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 doubtdoubt and without limitation, adjustments shall be made pursuant (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)”. Failure to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion.Deliver: Applicable Hedging Disruption: Applicable; provided that:
Appears in 1 contract
Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) of the definition of “Fundamental ChangeMerger Event” in Section 1.01 14.07 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Tender Offers: Not applicable. Consequences of Merger Events/ Tender OffersEvents : Notwithstanding Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender OfferEvent, the Calculation Agent Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event)Shares, Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided, however, that such no adjustment shall be made without regard to in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if. Nationalization, with respect to a Merger Event Insolvency or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election); and provided further that, for in addition to the avoidance provisions of doubtSection 12.6(a)(iii) of the Equity Definitions, adjustments 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. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 14.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the provisions set forth above regardless of whether any Merger Event Equity Definitions (as amended by this Confirmation) or Tender Offer gives rise to an Early Conversionotherwise.
Appears in 1 contract
Samples: Base Call Option Transaction (Impax Laboratories Inc)
Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) of the definition of “Fundamental ChangeMerger Event” in Section 1.01 14.07 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Tender Offers: Not applicable. Consequences of Merger Events/ Tender OffersEvents: Notwithstanding Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender OfferEvent, the Calculation Agent Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event)Shares, Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided, however, that such no adjustment shall be made without regard to in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if. Nationalization, with respect to a Merger Event Insolvency or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election); and provided further that, for the avoidance of doubt, adjustments shall be made pursuant in addition to the provisions set forth above regardless of whether 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 Merger Event of the New York Stock Exchange, The NASDAQ Global Select Market or Tender Offer gives rise 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 an Early Conversionbe the Exchange.
Appears in 1 contract
Samples: Additional Call Option Transaction (Atlas Holdings, Inc.)
Dilution Adjustment Provisions. Sections 14.04(a), (b), (c), (d), (e) and (fe) and Section 14.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, which shall not apply with respect to the Transaction, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language in the definition of “Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) of the definition of “Fundamental ChangeMerger Event” in Section 1.01 14.07 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Tender Offers: Not applicable. Consequences of Merger Events/ Tender OffersEvents: Notwithstanding Subject to Section 9(bb) below and notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender OfferEvent, the Calculation Agent Agent, in a commercially reasonable manner and in consultation with Counterparty, shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event)Shares, Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction to the extent an analogous adjustment would be made pursuant to the Indenture in connection with such Merger Event, subject to the second paragraph under “Method of Adjustment”; provided, however, that such no adjustment shall be made without regard to in respect of any adjustment to the Conversion Rate pursuant to any Excluded Provision; provided further that if. Nationalization, with respect to a Merger Event Insolvency or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporation, then, in either case, Delisting: Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole election); and provided further that, for in addition to the avoidance provisions of doubtSection 12.6(a)(iii) of the Equity Definitions, adjustments 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. Restrictions on Adjustments: Notwithstanding anything to the contrary in the Equity Definitions or this Confirmation, none of the events listed in Section 14.04(j) of the Indenture will constitute a Potential Adjustment Event or a Merger Event, and no adjustment will be made to the Transaction in connection with any such event pursuant to the provisions set forth above regardless of whether any Merger Event Equity Definitions (as amended by this Confirmation) or Tender Offer gives rise to an Early Conversionotherwise.
Appears in 1 contract
Samples: Base Call Option Transaction (Atlas Holdings, Inc.)
Dilution Adjustment Provisions. Sections 14.04(a[5.05(A)(i), (bii), (ciii), (d), (eiv) and (f) v)]37 and Section 14.05 [5.05(H)]38 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of [“Merger Event” following the definition of “Reverse Merger” therein) and (b) any occurrence Common Stock Change Event”]39 in Section [5.09(A)]40 of the Hexis IPO (Indenture. 37 Include cross-references to Indenture sections containing anti-dilution adjustments to the Conversion Rate. 38 Include cross-reference to Indenture section providing for adjustments where a Conversion Rate adjustment occurs during a period over which Last Reported Sale Prices, Daily VWAPs, Daily Conversion Values, Daily Cash Amount or Daily Share Amounts are calculated. 39 Update references as defined under needed based on terms used in the common stock change event provision of the Indenture) or the Hexis Spin. 40 Include cross-off (as defined under the Indenture)reference to Indenture section describing consequences of common stock change events. Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (a) Section [5.05(A)(v)]41 of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences of Merger Events/ Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the “Conversion Rate Rate” (as defined in the Indenture) pursuant to any Excluded Provision; provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be a corporationcorporation organized under the laws of the United States, any State thereof or the District of Columbia, then, in either case, Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole reasonable election; and provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. 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 phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, (y) the phrases “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, in good faith and in a commercially reasonable manner, determine whether the relevant Announcement Event has had a material economic effect on the Transaction (and, if so, shall adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that (i) any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event and (ii) in making any adjustment the Calculation Agent shall take into account volatility, liquidity or other factors before and after such 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. 41 Include cross-reference to Indenture section describing consequences of tender offers.
Appears in 1 contract
Dilution Adjustment Provisions. Sections 14.04(aSection 13.04(a), (b), (c), (d), ) and (e) and (f) and Section 14.05 13.05 of the Supplemental Indenture. Extraordinary Events applicable to the Transaction: Merger Events: Applicable; provided that (i) notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of a Share Exchange Event (as defined in Section 14.07(a) of the Supplemental Indenture) and (ii) solely for purposes of Section 9(cc) and “Announcement Event” below, (a) as defined under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, determined without regard to the language any event or condition set forth in the definition of “Merger Event” following the definition of “Reverse Merger” thereinin Section 13.07(a) and (b) any occurrence of the Hexis IPO (as defined under the Indenture) or the Hexis Spin-off (as defined under the Indenture). Tender Offers: Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in paragraph (aSection 13.04(e) of the definition of “Fundamental Change” in Section 1.01 of the Supplemental Indenture and, solely for purposes of Section 9(cc) and “Announcement Event” below, as defined under Section 12.1(d) of the Equity DefinitionsIndenture. Consequences Consequence of Merger Events/ Events / Tender Offers: Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding an adjustment in respect of any adjustment required to be made under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options Options, Option Entitlement and any other variable relevant to the Option Entitlementexercise, settlement or payment for the Transaction (as determined by the Calculation Agent acting in good faith and in a commercially reasonable manner by reference to the relevant provisions of the Indenture); provided, however, provided that (x) such adjustment shall be made without regard to any adjustment to the Conversion Rate pursuant to any Excluded ProvisionProvision and (y) the Calculation Agent may limit or alter any such adjustment referenced in this paragraph so that the fair value of the Transaction to Dealer is not reduced as a result of such adjustment; and provided further that, notwithstanding the foregoing, if the Calculation Agent in good faith disagrees with any adjustment pursuant to the terms of the Indenture that is the basis of any adjustment hereunder and that involves an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 13.07 of the Indenture or any supplemental indenture entered into pursuant to Section 10.01(j) of the Indenture), then the Calculation Agent acting in good faith and in a commercially reasonable manner will determine the adjustment to be made to any one or more of the nature of the Shares, Strike Price, Number of Options, Option Entitlement, Regular Dividend and any other variable relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner; and provided further that if, with respect to a Merger Event or a Tender Offer, (i) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is not a corporation or is not organized under the laws of the United States, any State thereof or the District of Columbia or (ii) the Counterparty to the Transaction following such Merger Event or Tender Offer Offer, will not be a corporationcorporation or will not be the Issuer following such Merger Event or Tender Offer, thenthen Dealer, in either caseits commercially reasonable discretion, may elect for Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s sole electionto apply. 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 thatthat 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 doubtdoubt and without limitation, adjustments shall be made pursuant (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing applicable law)”. Failure to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion.Deliver: Applicable Hedging Disruption: Applicable; provided that:
Appears in 1 contract
