Full Press Release Details
| To | Tandem Diabetes Care, Inc. 11075 Roselle Street San Diego, California 92121 Attention David B. Berger, Esq. Telephone No. (858) 255-6380 |
| A C | |
| From | Dealer |
| Re | Base Additional Call Option Transaction |
| Ref. No | Insert Reference Number |
| Date | May 15 , 2020 |
Dear Ladies and Gentlemen
The purpose of this letter agreement (this "Confirmation") is to confirm the terms and conditions of the above-referenced call option transaction entered into on the Trade Date specified below (the "Transaction") between _______________ ("Dealer") , through its agent _______________(the "Agent") and Tandem Diabetes Care, Inc. ("Counterparty"). This letter agreement constitutes a "Confirmation" as referred to in the Agreement specified below. Dealer is not a member of the Securities Investor Protection Corporation. Dealer is authorized by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority.
1.This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the "2006 Definitions") and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together with the 2006 Definitions, the "Definitions"), in each case, as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). Certain defined terms used herein are based on terms that are defined in the Preliminary Offering Circular dated May , 2020, as amended and supplemented by the related pricing term sheet (the "Offering Circular") relating to the USD 250,000,000 principal amount of % Convertible Senior Notes due 2025 (the "Base Convertible Securities") issued by Counterparty (as increased by up to an additional USD 37,500,000 principal amount of % Convertible Senior Notes due 2025 that may be 1 issued pursuant to the option to purchase additional convertible securities granted to the Initial Purchasers (as defined in the Purchase Agreement) and exercised on the date hereof 2 (the "Optional Convertible Securities" and, together with the Base Convertible Securities, the "Convertible Securities")) pursuant to an Indenture to be dated May __ , 2020 between Counterparty and _____ , as trustee (the "Indenture"). In the event of any inconsistency between the terms defined in the Offering Circular, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture that are also defined herein by reference to the Indenture and (ii) sections of the Indenture that are referred to herein, in each case, will conform to the descriptions thereof in the Offering Circular. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions thereof in the Offering Circular, the descriptions thereof in the Offering Circular will govern for purposes of this Confirmation. For the avoidance of doubt, subject to the foregoing, references herein to sections of, or definitions set forth in, the Indenture are based on the draft of the Indenture most recently distributed to the parties at the time of execution of this Confirmation. If any relevant sections of, or definitions set forth in, the Indenture are changed, added or renumbered between the execution of this Confirmation and the execution of the Indenture, the parties will amend this Confirmation in good faith and in a commercially reasonable manner to preserve the economic intent of the parties, as evidenced by such revised draft of the Indenture. Subject to the foregoing, the The parties acknowledge that references to the Indenture herein are references to the Indenture as in effect on the date of its execution and if the Indenture is, or the Convertible Securities are, amended, modified or supplemented following the date of their execution, respectively, any such amendment, modification or supplement (other than any amendment, modification or supplement (i) pursuant to Section 14.07 of the Indenture, subject to the provisions opposite the caption "Discretionary Adjustments" in Section 2 hereof, and (ii) pursuant to Section 10.01(h) of the Indenture that, as determined by the Calculation Agent in good faith and in a commercially reasonable manner, conforms the Indenture to the description of Convertible Securities in the Offering Circular will be disregarded for purposes of this Confirmation (other than as provided in Section 8(b)(iii) below) unless the parties agree otherwise in writing.
Each party is hereby advised, and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions and has taken other material actions in reliance upon the parties' entry into the Transaction to which this Confirmation relates on the terms and conditions set forth below.
This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the "Agreement") in the form of the 2002 ISDA Master Agreement as if Dealer and Counterparty had executed an agreement in such form on the Trade Date (but without any Schedule except for (i) the election of US Dollars ("USD") as the Termination Currency, (ii) the laws of the State of New York as the governing law (without reference to choice of law doctrine), and (iii)(A) the election that the "Cross Default" provisions of Section 5(a)(vi) of the Agreement shall apply to Dealer with a "Threshold Amount" of three percent (3.0%) of the Dealer's parent's shareholders' equity as of the Trade Date provided that "Specified Indebtedness" shall not include obligations in respect of deposits received in the ordinary course of Dealer's banking business, (B) the phrase "or becoming capable at such time of being declared" shall be deleted from clause (1) of Section 5(a)(vi) of the Agreement, and (C) the following language shall be added to the end of Section 5(a)(vi) of the Agreement "Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by error or omission of an administrative or operational nature (y) funds were available to enable the party to make the payment when due and (z) the payment is made within two Local Business Days of such party's receipt of written notice of its failure to pay."
In the event of any inconsistency between the provisions of this Confirmation and the Agreement, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction to which this Confirmation relates will be governed by the Agreement.
2.The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as follows
Trade Date May , 2020
Effective Date The closing date of the initial 3 issuance
of the Convertible Securities issued pursuant to the option to purchase additional Convertible Securities granted to the Initial Purchasers and exercised on the date hereof 4 .
Option Style Modified American, as described under
"Procedures for Exercise" below.
Shares The Common Stock of Counterparty, par value
USD0.001 (Ticker Symbol "TNDM").
Number of Options The number of Base Convertible Securities in
denominations of USD1,000 principal amount issued by Counterparty on the closing date for the initial issuance of the Convertible Securities. 5 The number of Optional Convertible Securities in denominations of USD1,000 principal amount purchased by the Initial Purchasers, at their option pursuant to Section 2 of the Purchase Agreement (as defined below). 6 For the avoidance of doubt, the Number of Options outstanding shall be reduced by each exercise of Options hereunder. In no event will the Number of Options be less than zero.
Applicable Percentage __ % 7
Option Entitlement A number equal to the product of the
Applicable Percentage and _____ 8
Make-Whole Fundamental Change
Adjustment Any adjustment to the Conversion Rate (as defined in the
Indenture) pursuant to Section 14.03 of the Indenture.
Voluntary Adjustment Any adjustment to the Conversion Rate (as defined in the
Indenture) pursuant to Section 14.04(h) of the Indenture.
Strike Price USD _____ 9
Rounding of Strike Price
Cap Price Option Entitlement In connection with any adjustment to the Option Entitlement
or Strike Price, the Option Entitlement or Strike Price, as the case may be, shall be rounded by the Calculation Agent in accordance
with the provisions of the Indenture relating to rounding of the Conversion Price (as defined in the Indenture) (in the case of the Strike Price) or the Conversion Rate (as defined in the Indenture) (in the case of the Option Entitlement). In connection with any adjustment to the Cap Price hereunder, the Calculation Agent will round the adjusted Cap Price to the nearest USD 0.0001.
Number of Shares As of any date, a number of Shares equal to the product
of the Number of Options and the Option Entitlement.
Premium Payment Date The Effective Date
Exchange The Nasdaq Global Market
Related Exchange All Exchanges provided that Section 1.26 of the Equity
Definitions shall be amended to add the words "United States" before the word "exchange" in the tenth line of such Section.
Procedures for Exercise
Exercise Dates Each Conversion Date.
Conversion Date With respect to any conversion of a Convertible
Security (other than any conversion of Convertible Securities with a Conversion Date (as defined in the Indenture) occurring prior to the Free Convertibility Date (any such conversion, an "Early Conversion"), to which the provisions of Section 8(b)(ii) of this Confirmation shall apply), the Conversion Date (as defined in the Indenture) (such Convertible Securities, the "Relevant Convertible Securities" for such Conversion Date). 10
With respect to any conversion of a Convertible Security (other than any conversion of Convertible Securities with a Conversion Date (as defined in the Indenture) occurring prior to the Free Convertibility Date (any such conversion, an "Early Conversion"), to which the provisions of Section 8(b)(ii) of this Confirmation shall apply), the Conversion Date (as defined in the Indenture) for Convertible Securities that are not "Relevant Convertible Securities" under (and as defined in) the confirmation between the parties hereto regarding the Base Call Option Transaction dated May , 2020 (the "Base Call Option Transaction Confirmation") (such Convertible Securities, the "Relevant Convertible Securities" for such Conversion Date). For the purposes of determining whether any Convertible Securities will be Relevant Convertible Securities hereunder or "Relevant Convertible Securities" under the Base Call Option Transaction Confirmation, Convertible Securities that are converted pursuant to the Indenture shall be allocated first to the Base Call Option Transaction Confirmation until all Options thereunder are exercised or terminated. 11
Free Convertibility Date November 1, 2024
Expiration Date The earlier of (i) the last day on which any Convertible
Securities remain outstanding and (ii) the second Scheduled Trading Day (as defined in the Indenture) immediately preceding the Maturity Date (as defined in the Indenture).
Automatic Exercise on
Conversion Dates Applicable, which means that on each Conversion Date
occurring on or after the Free Convertibility Date, a number of Options equal to the number of Relevant Convertible Securities for such Conversion Date in denominations of USD1,000 principal amount shall be automatically exercised, subject to "Notice of Exercise" below.
Notice Deadline Subject to "Notice of Exercise" below, in respect of any
exercise of Options hereunder on any Conversion Date on or after the Free Convertibility Date, 5 00 P.M., New York City time, on the Scheduled Trading Day (as defined in the Indenture) immediately preceding the Maturity Date (as defined in the Indenture).
Notice of Exercise Notwithstanding anything to the contrary in
the Equity Definitions, Dealer shall have no obligation to make any payment or delivery in respect of any exercise of Options hereunder with a Conversion Date occurring on or after the Free Convertibility Date and such obligation in respect of such exercise shall be permanently extinguished unless Counterparty delivers the Notice of Final Convertible Security Settlement Method (as defined below) and notifies Dealer in writing (which, for the avoidance of doubt, may be by email) prior to the Notice Deadline in respect of such exercise of the number of Relevant Convertible Securities being converted on the related Conversion Date provided that, notwithstanding the foregoing, such notice (and the related exercise of Options hereunder) shall be effective if given after the Notice Deadline, but prior to 5 00 P.M., New York City time, on the fifth Exchange Business Day following such Notice Deadline, in which event the Calculation Agent shall have the right to adjust the Delivery Obligation in a commercially reasonable manner with respect to the exercise of such Options, as appropriate to reflect the commercially reasonable costs (to account solely for hedging mismatches and market losses) and commercially reasonable out-of-pocket expenses incurred by Dealer or any of its affiliates in connection with its commercially reasonable hedging activities (including the unwinding of any commercially reasonable hedge position in a commercially reasonable manner) as a result of its not having received such notice prior to the Notice Deadline (it being understood that the adjusted Delivery Obligation described in the preceding proviso can never be less than zero and can never require any payment by Counterparty) provided further, that any "Notice of Exercise" delivered to Dealer pursuant to the Base Call Option Transaction Confirmation shall be deemed to be a Notice of Exercise pursuant to this Confirmation and the terms of such Notice of Exercise shall apply, mutatis mutandis, to this Confirmation 12 . For the avoidance of doubt, subject to the foregoing sentence, if Counterparty fails to give such notice when due in respect of any exercise of Options hereunder with a Conversion Date occurring on or after the Free Convertibility Date, Dealer's obligation to make any payment or delivery in respect of such exercise shall be permanently extinguished, and late notice shall not cure such failure.
Notice of Final Convertible Security
Settlement Method In addition, Counterparty shall notify Dealer in writing
(which, for the avoidance of doubt, may be by email) before 5 00 P.M., New York City time, on the Scheduled Trading Day (as defined in the Indenture) immediately preceding the Free Convertibility Date of the settlement method (and, if applicable, the Specified Dollar Amount (as defined in the Indenture)) elected with respect to Relevant Convertible Securities with a Conversion Date occurring on or after the Free Convertibility Date (any such notice, a "Notice of Final Convertible Security Settlement Method"). If applicable, the Notice of Final Convertible Security Settlement Method shall also contain the Settlement Method Election Provisions.
Dealer's Contact Details for Notice As specified in Section 6(b) below.
Settlement Date For any Exercise Date, the date one Settlement Cycle
following the final day of the Cash Settlement Averaging Period provided that the Settlement Date shall not be prior to the Exchange Business Day immediately following the date Counterparty provides the Notice of Delivery Obligation prior to 5 00 P.M., New York City time.
Delivery Obligation In lieu of the obligations set forth in Sections 8.1 and 9.1 of
the Equity Definitions, and subject to "Automatic Exercise on Conversion Dates" and "Notice of Exercise" above and "Method of Adjustment", "Discretionary Adjustments", "Consequences of Merger Events Tender Offers", "Consequences of Announcement Events" and Section 8(k) below, in respect of an Exercise Date, Dealer will deliver to Counterparty on the related Settlement Date (the "Delivery Obligation"), (i) a number of Shares equal to the product of the Applicable Percentage and the aggregate number of Shares, if any, that Counterparty would be obligated to deliver to the holder(s) of the Relevant Convertible Securities for such Conversion Date pursuant to Section 14.02(a)(iv) of the Indenture (except that such number of Shares shall be rounded down to the nearest whole number) and cash in lieu of any fractional Share resulting from such rounding and or (ii) the product of the Applicable Percentage and the aggregate amount of cash, if any, in excess of the principal amount of the Relevant Convertible Securities that Counterparty would be obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date pursuant to Section 14.02(a)(iv) of the Indenture, determined, for each of clauses (i) and (ii), by the Calculation Agent in good faith and in a commercially reasonable manner (by reference to such Sections of the Indenture) as if (x) Counterparty had elected to satisfy its conversion obligation in respect of such Relevant Convertible Securities by the Applicable Settlement Method, notwithstanding any different actual election by Counterparty with respect to the settlement of such Relevant Convertible Securities and (y) the relevant Observation Period (as defined in the Indenture) were the Cash Settlement Averaging Period (with commercially reasonable adjustments by the Calculation Agent in the case of a Deemed Cash Election to reflect
an Observation Period (as defined in the Indenture) with a duration corresponding to the duration of the Cash Settlement Averaging Period) provided that if the Daily VWAP (as defined in the Indenture) for any Trading Day (as defined in the Indenture) during the Cash Settlement Averaging Period is greater than the Cap Price, then clause (b) of the relevant Daily Conversion Value (as defined in the Indenture) for such Trading Day (as defined in the Indenture) shall be determined as if such Daily VWAP (as defined in the Indenture) for such Trading Day (as defined in the Indenture) were deemed to equal the Cap Price provided further that the Delivery Obligation shall be determined excluding (x) any Shares and or cash that Counterparty is obligated to deliver to holder(s) of the Relevant Convertible Securities as a direct or indirect result of any adjustments to the Conversion Rate (as defined in the Indenture) pursuant to a Voluntary Adjustment and or a Make-Whole Fundamental Change Adjustment and (y) any interest payment that Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date. Notwithstanding the foregoing, if, in respect of any Exercise Date, (x)(I) the number of Shares included in the Delivery Obligation multiplied by the Share Obligation Value Price plus (II) the amount of cash included in the Delivery Obligation, would otherwise exceed (y) the product of the Applicable Percentage and the relevant Net Convertible Share Obligation Value, such number of Shares and such amount of cash shall be proportionately reduced to the extent necessary to eliminate such excess.
Applicable Settlement Method For any Relevant Convertible Securities, if (i) Counterparty
has notified Dealer in the Notice of Final Convertible Security Settlement Method that it has elected to satisfy its conversion obligation in respect of such Relevant Convertible Securities in cash or in a combination of cash and Shares in accordance with Section 14.02(a) of the Indenture (a "Cash Election") with a Specified Dollar Amount (as defined in the Indenture) of at least USD1,000 and (ii) such Notice of Final Convertible Security Settlement Method contains all of the Settlement Method Election Provisions, the Applicable Settlement Method shall be the settlement method actually so elected by Counterparty in respect of such Relevant Convertible Securities (the "Convertible Securities Settlement Method") as if the relevant Observation Period (as defined in the Indenture) were the Cash Settlement Averaging Period otherwise, the Applicable Settlement Method shall assume Counterparty had made a Cash Election with respect to such Relevant Convertible Securities (a "Deemed Cash Election") with a Specified Dollar Amount (as defined in the Indenture) of USD1,000 per Relevant Convertible Security and the Delivery Obligation shall be determined by the Calculation Agent pursuant to Section 14.02(a)(iv)(C) of the Indenture as if the relevant Observation Period (as defined in the Indenture) were the Cash Settlement Averaging Period (with commercially reasonable adjustments by the Calculation Agent to reflect an Observation Period (as defined in the Indenture) with a duration corresponding to the duration of the Cash Settlement Averaging Period).
Cash Settlement Averaging Period The 40 Trading Days (as defined in the Indenture)
commencing on, and including, the 41st Scheduled Trading Day (as defined in the Indenture) prior to the Maturity Date (as defined in the Indenture) provided that in the case of a Deemed Cash Election, the Cash Settlement Averaging Period may be extended as needed in order to allow the Dealer to unwind its commercially reasonable hedge in a commercially reasonable manner with respect to the Transaction provided further that the Cash Settlement Averaging Period shall not exceed the 80 Trading Days (as defined in the Indenture) commencing on, and including, the 81st Scheduled Trading Day (as defined in the Indenture) prior to the Maturity Date (as defined in the Indenture).
Settlement Method Election Provisions In order for the Applicable Settlement Method to be the
Convertible Securities Settlement Method in accordance with "Applicable Settlement Method" above, the Notice of Final Convertible Security Settlement Method must contain in writing the following representations and warranties from Counterparty to Dealer as of such notice delivery date
(i) Counterparty is not aware of any material nonpublic information regarding Counterparty or the Shares
(ii) Counterparty is electing the Convertible Security Settlement Method in good faith and not as part of a plan or scheme to evade compliance with the U.S. federal securities laws
(iii) Counterparty has the legal authority to make such election and to execute and deliver any documentation relating to such election that it is required by this Confirmation to deliver and to perform its obligations under this Confirmation and has taken or will take, prior to making such election, all necessary action to authorize such election, execution, delivery and performance and
(iv) such election and performance of its obligations under this Confirmation do not violate or conflict with any law applicable to it, any provision of its certificate of incorporation or bylaws, any order or judgment of any court or other agency of government applicable to it, or any contractual restriction binding on it.
Notice of Delivery Obligation No later than the Exchange Business Day immediately
following the last day of the Cash Settlement Averaging Period, Counterparty shall give Dealer notice of the aggregate number of Shares and or amount of cash included in the Total Convertible Share Obligation Value (as defined below) for all Exercise Dates (it being understood, for the avoidance of doubt, that the requirement of Counterparty to deliver such notice shall not limit Counterparty's obligations with respect to a Notice of Exercise or Notice of Final Convertible Security Settlement Method, as the case may be, as set forth above, in any way).
Net Convertible Share Obligation Value With respect to Relevant Convertible Securities as to a
Conversion Date, (i) the Total Convertible Share Obligation Value of such Relevant Convertible Securities for such Conversion Date
minus (ii) the aggregate principal amount of such Relevant Convertible Securities for such Conversion Date.
Total Convertible Share Obligation Value With respect to Relevant Convertible Securities with respect
to a Conversion Date, (i) (A) the number of Shares equal to the aggregate number of Shares that Counterparty is obligated to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture multiplied by (B) the Share Obligation Value Price plus (ii) an amount of cash equal to the aggregate amount of cash that Counterparty has elected to deliver to the holder(s) of Relevant Convertible Securities for such Conversion Date pursuant to the Indenture (including, for the avoidance of doubt, any cash payable by Counterparty in lieu of fractional Shares) provided that the Total Convertible Share Obligation Value shall be determined excluding (x) any Shares and or cash that Counterparty is obligated to deliver to holder(s) of the Relevant Convertible Securities as a direct or indirect result of any adjustments to the Conversion Rate (as defined in the Indenture) pursuant to a Voluntary Adjustment and or a Make-Whole Fundamental Change Adjustment and (y) any interest payment that Counterparty is (or would have been) obligated to deliver to holder(s) of the Relevant Convertible Securities for such Conversion Date.
Share Obligation Value Price The opening price as displayed under the heading "Op" on
Bloomberg page "TNDM Equity " (or its equivalent successor if such page is not available) on the applicable Settlement Date or other date of delivery.
Other Applicable Provisions To the extent Dealer is obligated to deliver Shares hereunder,
the provisions of Sections 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable as if "Physical Settlement" applied to the Transaction provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares.
Restricted Certificated Shares Notwithstanding anything to the contrary in the Equity
Definitions, Dealer may, in whole or in part, deliver Shares required to be delivered to Counterparty hereunder in certificated form in lieu of delivery through the Clearance System. With respect to such certificated Shares, the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by deleting the remainder of the provision after the word "encumbrance" in the fourth line thereof.
Method of Adjustment Notwithstanding Section 11.2 of the Equity Definitions, upon
the occurrence of any event or condition set forth in the Dilution Adjustment Provisions (a "Potential Adjustment Event") that requires an adjustment under the Indenture, the Calculation Agent shall, in good faith and in a commercially reasonable manner, make a corresponding adjustment in respect of any one or more of the
Strike Price, the Number of Options, the Option Entitlement and any other term relevant to the exercise, settlement or payment of the Transaction, to the extent an analogous adjustment is required under the Indenture, subject to "Discretionary Adjustments" below. Immediately upon the occurrence of any Potential Adjustment Event, Counterparty shall notify the Calculation Agent of such Potential Adjustment Event.
Notwithstanding anything to the contrary herein or in the Equity Definitions
(i) in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section 14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining "Y" (as such term is used in Section 14.04(b) of the Indenture) or "SP0" (as such term is used in Section 14.04(c) of the Indenture), as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment Event, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the commercially reasonable costs (to account solely for hedging mismatches and market losses) and commercially reasonable out-of-pocket expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such event or condition not having been publicly announced prior to the beginning of such period and
(ii) if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the Conversion Rate (as defined in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based on such declaration or (c) the Conversion Rate (as defined in the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted (each of clauses (a), (b) and (c), a "Potential Adjustment Event Change") then, in each case, the Calculation Agent shall, in good faith and in a commercially reasonable manner, have the right to adjust any variable relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the commercially reasonable costs (to account solely for hedging mismatches and market losses) and commercially reasonable out-of-pocket expenses incurred by Dealer in connection with its commercially reasonable hedging activities as a result of such Potential Adjustment Event Change.
As promptly as practicable following the occurrence of any Potential Adjustment Event Change, Counterparty shall notify the
Calculation Agent in writing of the details of such Potential Adjustment Event Change.
For the avoidance of doubt, Dealer shall not have any payment or delivery obligation hereunder in respect of, and no adjustment shall be made to the terms of the Transaction on account of, (x) any distribution of cash, property or securities by Counterparty to the holders of Convertible Securities (upon conversion or otherwise) or (y) any other transaction in which holders of Convertible Securities are entitled to participate, in each case, in lieu of an adjustment under the Indenture in respect of a Potential Adjustment Event (including, without limitation, under the fourth sentence of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture).
Dilution Adjustment Provisions Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of
Discretionary Adjustments Notwithstanding anything to the contrary herein or in the
Equity Definitions, if the Calculation Agent in good faith disagrees with any adjustment under the Indenture that involves an exercise of discretion by Counterparty, its board of directors or a committee of its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture or pursuant to Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with the determination of the fair value of any securities, property, rights or other assets), then the Calculation Agent will determine the corresponding adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment of or under the Transaction in good faith and in a commercially reasonable manner consistent with the methodology set forth in the Indenture. In addition, notwithstanding the foregoing, if any Potential Adjustment Event occurs during the Cash Settlement Averaging Period but no adjustment was made to any Convertible Security under the Indenture because the relevant holder of such Convertible Security was deemed to be a record owner of the underlying Shares on the related Conversion Date, then the Calculation Agent shall, in good faith and in a commercially reasonable manner, make an adjustment, as determined by it, to the terms hereof in order to account for the effect of such Potential Adjustment Event on Dealer's commercially reasonable hedge position. For the avoidance of doubt, the Delivery Obligation shall be calculated on the basis of such adjustments by the Calculation Agent.
Extraordinary Events
Merger Events Notwithstanding Section 12.1(b) of the Equity Definitions,
"Merger Event" shall have the meaning set forth in Section 14.07 of the Indenture.
Consequences of Merger Events
Tender Offers Notwithstanding Section 12.2 and Section 12.3 of the Equity