362 of the Bankruptcy Code and a transfer within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
(e) As a condition to the effectiveness of the Transaction, Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Effective Date, in substantially the form attached hereto as Annex B.
(f) Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative transactions between Counterparty and Dealer or its affiliates, Dealer or its affiliates is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination thereof.
(g) Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.
(h) Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled Characteristics and Risks of Standardized Options.
8. Other Provisions:
(a) Right to Extend. Dealer may divide any Component into additional Components and designate the Expiration Date and the Number of Options for each such Component if Dealer determines, in good faith and a commercially reasonable manner, that such further division is necessary or advisable to preserve Dealers hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable Dealer to effect purchases of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an affiliated purchaser of Counterparty, be compliant and consistent with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures, generally applicable to transactions of the type of the Transactions; provided that in no event shall any Expiration Date for any Component be postponed to a date later than the Final Termination Date.
(b) Additional Termination Events. Promptly (but in any event within ten Scheduled Trading Days) following any repurchase, redemption, exchange or conversion of any of the Counterpartys % Convertible Senior Notes due 2026 (the Convertible Notes) issued pursuant to the Counterpartys indenture (the Indenture) [to be]8 dated September [ ], 2020 between the Counterparty and U.S. Bank National Association, as trustee, Counterparty may notify Dealer in writing of such repurchase, redemption, exchange or conversion and the number of Convertible Notes so repurchased, redeemed, exchanged or converted (any such notice, a Repurchase Notice and any such event, a Repurchase Event)[; provided that any Repurchase Notification delivered to Dealer pursuant to the Base Capped Call Transaction Confirmation letter agreement dated September [ ], 2020 between Dealer and Counterparty (the Base Call Option Confirmation) shall be deemed to be a Repurchase Notification pursuant to this Confirmation and the terms of such Repurchase Notification shall apply, mutatis mutandis, to this Confirmation]9. Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notice, within the applicable time period set forth in the preceding sentence, and (y) a written representation and warranty by Counterparty that, as of the date of such Repurchase Notice, Counterparty is not in [possession of any material non-public information regarding Counterparty or the Shares,] shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repurchase Notice and the related written representation and warranty, Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notice as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the Repurchase Options) equal to the lesser of (A) [(x)] the number of shares of Common stock underlying the Convertible Notes applicable to the Transaction that is specified in such Repurchase Notice [minus (y) the number of Repurchase Options (as defined in the Base Call Option Transaction dated September [ ], 2020 between Dealer and Counterparty (the Base Call Option Transaction Confirmation), if any, that relate to such Convertible Notes (and for purposes of determining
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Include in the Base Capped Call Confirmation. Include in the Additional Capped Call Confirmation if executed by the closing of the base deal.
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Include in the Additional Call Option Transaction Confirmation only.