Exhibit 10.1
GOLDMAN, SACHS & CO.
| ONE NEW YORK PLAZA | NEW YORK, NEW YORK 10004 | TEL:
(212) 902-1000
Opening Transaction
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To:
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Teradyne, Inc.
600 Riverpark Drive
North Reading, MA 01864
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A/C:
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028400547
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From:
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Goldman, Sachs
& Co.
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Re:
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Convertible
Bond Hedge Transaction
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Ref. No:
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SDB1630292323
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Date:
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March 31,
2009
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Dear Sir(s):
The purpose of this communication
(this “ Confirmation ”) is to set forth the
terms and conditions of the above-referenced transaction entered
into on the Trade Date specified below (the “
Transaction ”) between Goldman, Sachs & Co.
(“ Dealer ”) and Teradyne, Inc. (“
Counterparty ”). This communication constitutes a
“Confirmation” as referred to in the ISDA Master
Agreement specified below.
1. This Confirmation is subject to,
and incorporates, the definitions and provisions of the 2000 ISDA
Definitions (including the Annex thereto) (the “ 2000
Definitions ”) and the definitions and provisions of the
2002 ISDA Equity Derivatives Definitions (the “ Equity
Definitions ”, and together with the 2000 Definitions,
the “ Definitions ”), in each case as published
by the International Swaps and Derivatives Association, Inc.
(“ ISDA ”). In the event of any inconsistency
between the 2000 Definitions and the Equity Definitions, the Equity
Definitions will govern. Certain defined terms used herein have the
meanings assigned to them in the Indenture to be dated as of
April 6, 2009 between Counterparty and U.S. Bank National
Association, as trustee (the “ Indenture ”)
relating to the USD $175,000,000 principal amount of 4.50%
convertible senior notes due 2014 (the “ Convertible
Securities ”). In the event of any inconsistency between
the terms defined in the Indenture and this Confirmation, this
Confirmation shall govern. For the avoidance of doubt, references
herein to sections of the Indenture are based on the draft of the
Indenture most recently reviewed by the parties at the time of
execution of this Confirmation. If any relevant sections of 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 to preserve the economic
intent of the parties, as evidenced by such draft of the Indenture.
The parties further 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 amended following its
execution, any such amendment will be disregarded for purposes of
this Confirmation (other than Section 8(b)(ii) below) unless
the parties agree otherwise in writing. The Transaction is subject
to early unwind if the closing of the Convertible Securities is not
consummated for any reason, as set forth below in
Section 8(k).
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 date hereof (but without any Schedule except
for (i) the election of New York law (without reference to its
choice of laws doctrine, other than Title 14 of the New York
General Obligations Law) as the governing law and US Dollars
(“ USD ”) as the Termination Currency, and
(ii) the election that the “Cross Default”
provisions of Section 5(a)(vi) of the Agreement shall apply to
Counterparty with a “Threshold Amount” of USD25
million); provided that Section 5(a)(vi)(1) is amended
by deleting the phrase “, or becoming capable at such time of
being declared,”.
All provisions contained in, or
incorporated by reference to, the Agreement will govern this
Confirmation except as expressly modified herein. In the event of
any inconsistency between this Confirmation and either the
Definitions or the Agreement, this Confirmation shall
govern.
The Transaction hereunder shall be
the sole Transaction under the Agreement. If there exists any ISDA
Master Agreement between Dealer and Counterparty or any
confirmation or other agreement between Dealer and Counterparty
pursuant to which an ISDA Master Agreement is deemed to exist
between Dealer and Counterparty, then notwithstanding anything to
the contrary in such ISDA Master Agreement, such confirmation or
agreement or any other agreement to which Dealer and Counterparty
are parties, the Transaction shall not be considered a Transaction
under, or otherwise governed by, such existing or deemed ISDA
Master 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:
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General
Terms:
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Trade Date:
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March 31,
2009
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Effective Date:
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The closing
date of the initial issuance of the Convertible
Securities.
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Option Style:
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Modified
American, as described under “Procedures for Exercise”
below.
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Option Type:
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Call
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Seller:
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Dealer
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Buyer:
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Counterparty
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Shares:
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The Common
Stock of Counterparty, par value USD 0.125 (Ticker Symbol:
“TER”).
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Number of Options:
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The number of
Convertible Securities in denominations of USD1,000 principal
amount issued by Counterparty on the closing date for the initial
issuance of the Convertible Securities; provided that the
Number of Options shall be automatically increased as of the date
of exercise by the Underwriters (as defined in the Underwriting
Agreement), of their option (the “ Additional Convertible
Securities Option ”) pursuant to Section 2 of the
Underwriting Agreement dated as of March 31, 2009 between
Counterparty and the Underwriters (the “ Underwriting
Agreement ”) by the number of
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Convertible
Securities in denominations of USD1,000 principal amount issued
pursuant to such exercise (such Convertible Securities, the “
Additional Convertible Securities ”. For the avoidance
of doubt, the Number of Options outstanding shall be reduced by
each exercise of Options hereunder and in no event shall be less
than zero.
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Option Entitlement:
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As of any date,
a number of Shares per Option equal to the “Conversion
Rate” (as defined in the Indenture, but without regard to any
adjustments to the Conversion Rate pursuant to Sections 15.03 or
15.04(i) of the Indenture).
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Strike Price:
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As of any date,
an amount in USD, rounded to the nearest cent (with 0.5 cents being
rounded upwards), equal to USD1,000 divided by the Option
Entitlement as of such date.
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Number of Shares:
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The product of
the Number of Options and the Option Entitlement.
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Premium:
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USD59,515,000
(Premium per Option USD1.8619693); provided that if the
Number of Options is increased pursuant to the proviso to the
definition of “Number of Options” above, an additional
Premium equal to the product of the number of Options by which the
Number of Options is so increased and the Premium per Option shall
be paid on the Additional Premium Payment Date.
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Premium Payment Date:
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The Effective
Date
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Additional Premium Payment Date:
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The closing
date for the purchase and sale of the Additional Convertible
Securities.
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Exchange:
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New York Stock
Exchange
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Related Exchange:
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All
Exchanges
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Procedures for
Exercise:
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Exercise Date:
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Each Conversion
Date.
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Conversion Date:
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Each
“Conversion Date” (as defined in the Indenture)
occurring during the Exercise Period for Convertible Securities
each in denominations of USD1,000 principal amount, (such
Convertible Securities, the “ Relevant Convertible
Securities ” for such Conversion Date).
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Exercise Period:
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The period from
and excluding the Effective Date to and including the Expiration
Date.
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Expiration Date:
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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).
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3
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Automatic Exercise on Conversion
Dates:
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Subject to
“Notice of Exercise” below, on each Conversion 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.
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Notice Deadline:
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In respect of
any exercise of Options hereunder, 12:00 P.M., New York City time,
on the Scheduled Trading Day immediately following the relevant
Exercise Date.
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Final Conversion Period:
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The period from
and including the 30th Scheduled Trading Day (as defined in the
Indenture) prior to the Maturity Date to and including the
Expiration Date.
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Final Conversion Notice Period:
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The period from
and including the 60th Scheduled Trading Day (as defined in the
Indenture) prior to the Maturity Date to and including the
Expiration Date.
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Notice of Exercise:
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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 unless:
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(a) in respect of
Exercise Dates occurring prior to the Final Conversion Notice
Period, Counterparty notifies Dealer in writing prior to the Notice
Deadline in respect of such exercise of (i) the Conversion Date and
the number of Relevant Convertible Securities being converted on
such Conversion Date, (ii) whether Convertible Cash Settlement,
Convertible Net Share Settlement or Convertible Gross Share
Settlement is applicable to such Relevant Convertible Securities,
(iii) the scheduled settlement date under the Indenture for the
Relevant Convertible Securities for such Conversion Date, and (iv)
the first Scheduled Trading Day (as defined in the Indenture) of
the relevant Observation Period (as defined in the Indenture), if
Convertible Cash Settlement or Convertible Net Share Settlement is
applicable;
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(b) in respect of
Exercise Dates occurring during the Final Conversion Notice Period
but prior to the Final Conversion Period, Counterparty notifies
Dealer in writing (i) on or prior to the Scheduled Trading Day
immediately preceding the first day of the Final Conversion Notice
Period, whether Counterparty has made the Final Cash Settlement
Election or the Final Gross Share Settlement Election, and
(ii) prior to the Notice Deadline in respect of such exercise,
of (A) the number of Relevant Convertible Securities being
converted on the related Conversion Date, (B) the scheduled
settlement date under the Indenture for the Relevant Convertible
Securities for such Conversion Date and (C) if Counterparty has not
made the Final Gross Share Settlement Election, the first Scheduled
Trading Day (as defined in the Indenture) of the relevant
Observation Period (as defined in the Indenture); or
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(c) in respect of
Exercise Dates occurring during the Final Conversion Period,
Counterparty notifies Dealer in writing (i) on or prior to the
first day of the Final Conversion Notice Period, whether
Counterparty has made the Final Cash Settlement Election or the
Final Gross Share Settlement Election, and (ii) prior to the
Notice Deadline in respect of such exercise, of the number of
Relevant Convertible Securities being converted on the related
Conversion Date.
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For the
avoidance of doubt, if Counterparty fails to give such notice prior
to the Notice Deadline in respect of any exercise of Options
hereunder, 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.
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Payment upon Conversion of Relevant Convertible
Securities:
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For any
Conversion Date, the Relevant Convertible Securities may, at
Counterparty’s election in accordance with Section 15.02(a)
of the Indenture, either be (a) net share settled pursuant to
Section 15.02(a)(iii) of the Indenture (such settlement, “
Convertible Net Share Settlement ”), in which case the
terms set forth herein as being applicable to Convertible Net Share
Settlement shall apply in respect of the related Exercise Date, (b)
gross physical share settled pursuant to Section 15.02(a)(i) of the
Indenture (such settlement, “ Convertible Gross Share
Settlement ”), in which case the terms set forth herein
as being applicable to Convertible Gross Share Settlement shall
apply in respect of the related Exercise Date, or (c) cash settled
pursuant to Section 15.02(a)(ii) of the Indenture (such settlement,
“ Convertible Cash Settlement ”), in which case
the terms set forth herein as being applicable to Convertible Cash
Settlement shall apply in respect of the related Exercise Date. In
accordance with the Indenture, in order for Convertible Cash
Settlement or Convertible Gross Share Settlement to be applicable
in respect of Conversion Dates occurring during the Final
Conversion Notice Period, Counterparty must make an irrevocable
election in accordance with Section 15.02(b) of the Indenture prior
to the commencement of such period (such notice, the “
Final Cash Settlement Election ” or the “
Final Gross Share Settlement Election ”, as the case
may be).
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Dealer’s Telephone Number and Telex and/or
Facsimile Number and Contact Details for purpose of Giving
Notice:
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To:
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Goldman, Sachs
& Co.
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One New York
Plaza
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New York, NY
10004
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Attn:
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Serge
Marquié,
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Equity Capital
Markets
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Telephone:
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212-902-9779
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Facsimile:
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917-977-4253
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Email:
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marqse@am.ibd.gs.com
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With a copy
to:
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Attn:
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Brian
Smith,
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Equity Capital
Markets
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Telephone:
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212-902-0058
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Facsimile:
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212-412-9881
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Email:
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smibri@am.ibd.gs.com
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And email
notification to the following address:
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Eq-derivs-notifications@am.ibd.gs.com
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Settlement
Terms:
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Settlement Date:
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For any
Exercise Date, (i) if Convertible Net Share Settlement is
applicable, the settlement date for the Shares to be delivered in
respect of the Relevant Convertible Securities for the relevant
Conversion Date under the terms of the Indenture, (ii) if
Convertible Gross Share Settlement is applicable, the date that is
one Settlement Cycle following the last day of the applicable
Deemed Observation Period, or (iii) if Convertible Cash Settlement
is applicable, the settlement date for the cash to be paid in
respect of the Relevant Convertible Securities for the relevant
Conversion Date under the terms of the Indenture; provided,
that, in each case, the Settlement Date shall not be prior to the
Exchange Business Day immediately following the date Counterparty
provides the Notice of Exercise.
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Delivery Obligation:
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In lieu of the
obligations set forth in Sections 8.1 and 9.1 of the Equity
Definitions, and subject to “Notice of Exercise” above,
in respect of an Exercise Date, Dealer will deliver or pay, as
applicable, the following to Counterparty on the related Settlement
Date (the “ Delivery Obligation ” for such
Exercise Date):
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(a) If Convertible
Cash Settlement is applicable to the Relevant Convertible
Securities, an amount of cash in USD equal to the aggregate amount
of cash in USD that Counterparty is obligated to deliver to the
holder(s) of the Relevant Convertible Securities for such
Conversion Date pursuant to Section 15.02(a)(ii) of the
Indenture
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(collectively, the “ Convertible Cash
Obligation ”) minus the aggregate principal amount of
such Relevant Convertible Securities; provided that the
Delivery Obligation set forth in this clause (a) shall be
determined excluding any 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
pursuant to Sections 15.03 and 15.04(i) of the Indenture and any
interest payment that Counterparty is (or would have been)
obligated to pay to holder(s) of the Relevant Convertible
Securities for such Conversion Date. For the avoidance of doubt, if
the “Daily Conversion Value” (as defined in the
Indenture) for each of the “VWAP Trading Days” (as
defined in the Indenture) occurring in the relevant Observation
Period is less than or equal to USD40, Dealer will have no delivery
obligation hereunder in respect of the related Exercise
Date.
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(b) If Convertible
Net Share Settlement is applicable to the Relevant Convertible
Securities, the Convertible Share Obligation; provided that
the Delivery Obligation set forth in this clause (b) shall be
determined excluding any Shares (and cash in lieu of fractional
Shares, if any) 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 pursuant
to Sections 15.03 and 15.04(i) of the Indenture and 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. For the avoidance of doubt, if
the “Daily Conversion Value” (as defined in the
Indenture) for each of the “VWAP Trading Days” (as
defined in the Indenture) occurring in the relevant Observation
Period is less than or equal to USD40, Dealer will have no delivery
obligation hereunder in respect of the related Exercise
Date.
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(c) If Convertible
Gross Share Settlement is applicable to the Relevant Convertible
Securities, the lesser of:
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(i) (A) a
number of Shares equal to the aggregate number of Shares, if any,
that Counterparty would have been obligated to deliver to the
holder(s) of Relevant Convertible Securities for such Conversion
Date pursuant to Section 15.02(a)(iii) the Indenture, as
modified in the immediately following sentence, and (B) cash
in the
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Settlement Currency in lieu of fractional
Shares, if any, resulting from rounding; provided that such
number of Shares shall be determined (x) without taking into
consideration any rounding pursuant to Section 15.02(k) of the
Indenture and shall be rounded down to the nearest whole number and
(y) excluding any Shares (and cash in lieu of fractional Shares, if
any) 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 pursuant to Sections 15.03
and 15.04(i) of the Indenture and (z) excluding 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. For purposes of this clause (c)(i), the
number of Shares deemed deliverable pursuant to Section
15.02(a)(iii) of the Indenture shall be determined as
if:
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(1) the Observation
Period with respect to any Conversion Date (such period, the
“ Deemed Observation Period ” in respect of such
Conversion Date) meant (A) with respect to Conversion Dates
occurring during the Final Conversion Notice Period, the 50
consecutive VWAP Trading Day period beginning on, and including,
the 52nd Scheduled Trading Day (as defined in the Indenture) prior
to the Maturity Date (or if such day is not a VWAP Trading Day, the
next succeeding VWAP Trading Day) and (B) with respect to
Conversion Dates occurring prior to the Final Conversion Notice
Period, the 50 consecutive VWAP Trading Day period beginning
on and including the 3rd VWAP Trading Day after such Conversion
Date;
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(2) the amount of
cash for purposes of determining the Daily Settlement Amount were
USD20 instead of USD 40;
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(3) the fraction in
the definition of Daily Conversion Value were
1
/ 50 th
instead of 1 / 25
th; and
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(4) the figure
“25” in the definition of Daily VWAP were replaced with
“50”; and
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(ii) a number of
Shares (rounded down to the nearest whole number) equal to the
Net
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Convertible Share Obligation Value divided
by the Share Obligation Value Price and cash in the Settlement
Currency in lieu of fractional Shares, if any, resulting from such
rounding.
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For the
avoidance of doubt, (x) if the “Daily Conversion Value”
(as defined in the Indenture) for each of the VWAP Trading Days
occurring in the relevant Deemed Observation Period is less than or
equal to USD20, Dealer will have no Delivery Obligation hereunder
in respect of the related Exercise Date, and (y) any cash amount in
lieu of fractional shares shall be based on the Daily VWAP (as
defined in the Indenture) of Shares on the last day of the relevant
Observation Period or Deemed Observation Period, as
applicable.
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With respect to
clauses (a), (b) and (c) above, the Shares and/or cash, as
applicable, constituting the Delivery Obligation shall be delivered
by Dealer to Counterparty no later than 5:00 P.M. (local time in
New York City) on the related Settlement Date.
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Convertible Share Obligation:
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(i) A number of
Shares equal to the aggregate number of Shares, if any, that
Counterparty is obligated to deliver to the holder(s) of the
Relevant Convertible Securities for such Conversion Date pursuant
to Section 15.02(a)(iii) of the Indenture (except that such number
of Shares shall be determined without taking into consideration any
rounding pursuant to Section 15.02(k) of the Indenture and shall be
rounded down to the nearest whole number) and (ii) cash in the
Settlement Currency in lieu of fractional Shares, if any, resulting
from such rounding.
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Settlement Currency:
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USD
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Notice of Delivery Obligation:
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(i) If
Convertible Cash Settlement is applicable, then, no later than the
Exchange Business Day immediately following the last day of the
relevant Observation Period, Counterparty shall give Dealer notice
of the final amount of cash comprising the relevant Convertible
Cash Obligation and the related aggregate principal amount of the
Relevant Convertible Securities;
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(ii) If
Convertible Net Share Settlement is applicable, then, no later than
the Exchange Business Day immediately following the last day of the
relevant Observation Period, Counterparty shall give Dealer notice
of the final number of Shares (and cash in lieu of fractional
Shares, if any) comprising the relevant Convertible Share
Obligation, or,
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(iii) if
Convertible Gross Share Settlement is applicable, then, no later
than the Exchange Business Day immediately following the relevant
Conversion
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Date,
Counterparty shall give Dealer notice of (A) the final number of
Shares deliverable by the Counterparty pursuant to Section
15.02(a)(i) of the Indenture (except that, in each case, such
number of Shares shall be determined without taking into
consideration any rounding pursuant to Section 15.02(k) of the
Indenture and shall be rounded down to the nearest whole number)
and (B) the aggregate amount of cash payable in lieu of fractional
Shares, if any;
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provided that, (i) with respect to any Exercise Date
occurring during the Final Conversion Period, then if Convertible
Net Share Settlement is applicable Counterparty may provide Dealer
with a single notice of the aggregate number of Shares (and cash in
lieu of fractional Shares) comprising the Convertible Share
Obligations for all Exercise Dates occurring during such period;
(ii) with respect to any Exercise Date occurring during the Final
Conversion Period, if Convertible Cash Settlement is applicable
Counterparty may provide Dealer with a single notice of the
aggregate amount of cash comprising the Convertible Cash Obligation
and the related aggregate principal amount of the Relevant
Convertible Securities for all Exercise Dates occurring during such
period; and (iii) with respect to any Exercise Date occurring on or
after the first day of the Final Conversion Notice Period, if
Convertible Gross Share Settlement is applicable Counterparty may
provide Dealer with a single notice of the aggregate number of
Shares (and cash in lieu of fractional Shares) deliverable pursuant
to Section 15.02(a)(i) of the Indenture (determined without taking
into consideration any rounding pursuant to Section 15.02(k) of the
Indenture and rounded down to the nearest whole number) for all
Exercise Dates occurring during such period (it being understood,
for the avoidance of doubt, that the requirement of Counterparty to
deliver such notice pursuant to (i), (ii) or (iii) above or this
proviso shall not limit Counterparty’s obligations with
respect to Notice of Exercise, as set forth above, in any
way).
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Net Convertible Share Obligation
Value:
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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.
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Total Convertible Share Obligation
Value:
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With respect to
Relevant Convertible Securities as to a Conversion Date, (a)(i) the
number of Shares equal to the aggregate number of Shares, if any,
that Counterparty is obligated to deliver to the holder(s) of
Relevant Convertible Securities for such Conversion
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10
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Date pursuant
to Section 15.02(a)(i) of the Indenture (except that such number of
Shares shall be determined (x) without taking into consideration
any rounding pursuant to Section 15.02(k) of the Indenture and
shall be rounded down to the nearest whole number) and (y) shall be
reduced by any Shares (and cash in lieu of fractional Shares, if
any) 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 pursuant to
Sections 15.03 and 15.04(i) of the Indenture and (z) shall be
reduced by 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 pursuant to the Indenture,
multiplied by (ii) the Share Obligation Value Price plus (b)
an amount equal to (i) the fractional Shares, if any, that would
have resulted but for the rounding under (a)(i) above multiplied
by (ii) the Share Obligation Value Price.
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Share Obligation Value Price:
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The opening
price as displayed under the heading “Op” on Bloomberg
page TER.N <equity> (or any successor thereto) on the
applicable Settlement Date (determined in accordance with clause
(ii) of “Settlement Date” above).
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Other Applicable Provisions:
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To
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