Granite Construction Inc 8-K, filed Jun 12, 2024

Granite Construction Inc (GVA)

8-K 2024-06-12 For: 2024-06-06

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Added on April 09, 2026

About this 8-K

Granite Construction Inc filed this 8-K on June 12, 2024, reporting on events of June 6, 2024.

Items reported

Item 1.01: Entered into a material agreement
Item 1.02: Ended a material agreement
Item 2.03: New debt or off-balance-sheet obligation
Item 3.02: Unregistered sale of equity
Item 9.01: Financial statements and exhibits

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Delaware		1-12911		77-0239383
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification No.)

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.01 par value	GVA	New York Stock Exchange

Exhibit Number		Description

4.1		Indenture (including Form of Note) with respect to Granite Construction Incorporated’s 3.25% Convertible Senior Notes due 2030, dated June 11, 2024, by and between Granite Construction Incorporated and Wilmington Trust, National Association, as trustee

4.2		Form of 3.25% Convertible Senior Notes due 2030 (included in Exhibit 4.1)

10.1		Form of Capped Call Confirmation

104		Cover Page Interactive Data File (formatted as Inline XBRL)

	GRANITE CONSTRUCTION INCORPORATED


Date: June 12, 2024	By:	/s/ M. Craig Hall
		M. Craig Hall
		Senior Vice President, General Counsel, Corporate
		Compliance Officer and Secretary

Section 1.01.	Definitions	1
Section 1.02.	References to Interest	13

Section 2.01.	Designation and Amount	13
Section 2.02.	Form of Notes	14
Section 2.03.	Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	14
Section 2.04.	Execution, Authentication and Delivery of Notes	16
Section 2.05.	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	17
Section 2.06.	Mutilated, Destroyed, Lost or Stolen Notes	24
Section 2.07.	Temporary Notes	25
Section 2.08.	Cancellation of Notes Paid, Converted, Etc	25
Section 2.09.	CUSIP Numbers	25
Section 2.10.	Additional Notes; Repurchases	26

Section 4.01	Payment of Principal and Interest	27
Section 4.02	Maintenance of Office or Agency	27
Section 4.03	Appointments to Fill Vacancies in Trustee’s Office	28
Section 4.04	Provisions as to Paying Agent	28
Section 4.05	Existence	29
Section 4.06	Rule 144A Information Requirement and Annual Reports	29
Section 4.07	Stay, Extension and Usury Laws	31
Section 4.08	Compliance Certificate; Statements as to Defaults	31
Section 4.09	Further Instruments and Acts	32

Section 5.01	Lists of Holders	32
Section 5.02	Preservation and Disclosure of Lists	32

Section 6.01	Events of Default	32
Section 6.02	Acceleration; Rescission and Annulment	34
Section 6.03	Additional Interest	35
Section 6.04	Payments of Notes on Default; Suit Therefor	36
Section 6.05	Application of Monies Collected by Trustee	37
Section 6.06.	Proceedings by Holders	38
Section 6.07.	Proceedings by Trustee	39
Section 6.08.	Remedies Cumulative and Continuing	39
Section 6.09.	Direction of Proceedings and Waiver of Defaults by Majority of Holders	40
Section 6.10.	Notice of Defaults	40
Section 6.11.	Undertaking to Pay Costs	40

Section 7.01.	Duties and Responsibilities of Trustee	41
Section 7.02.	Reliance on Documents, Opinions, Etc	42
Section 7.03.	No Responsibility for Recitals, Etc	44
Section 7.04.	Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	44
Section 7.05.	Monies to Be Held in Trust	44
Section 7.06.	Compensation and Expenses of Trustee	44
Section 7.07.	Officers’ Certificate as Evidence	45
Section 7.08.	Eligibility of Trustee	45
Section 7.09.	Resignation or Removal of Trustee	45
Section 7.10.	Acceptance by Successor Trustee	46
Section 7.11.	Succession by Merger, Etc	47
Section 7.12.	Trustee’s Application for Instructions from the Company	48

Section 8.01.	Action by Holders	48
Section 8.02.	Proof of Execution by Holders	48
Section 8.03.	Who Are Deemed Absolute Owners	48
Section 8.04.	Company-Owned Notes Disregarded	49
Section 8.05.	Revocation of Consents; Future Holders Bound	49

Section 9.01.	Purpose of Meetings	50
Section 9.02.	Call of Meetings by Trustee	50
Section 9.03.	Call of Meetings by Company or Holders	50
Section 9.04.	Qualifications for Voting	51
Section 9.05.	Regulations	51
Section 9.06.	Voting	51
Section 9.07.	No Delay of Rights by Meeting	52

Section 10.01.	Supplemental Indentures Without Consent of Holders	52
Section 10.02.	Supplemental Indentures with Consent of Holders	53
Section 10.03.	Effect of Supplemental Indentures	54
Section 10.04.	Notation on Notes	54
Section 10.05.	Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	54

Section 11.01.	Company May Consolidate, Etc. on Certain Terms	55
Section 11.02.	Successor Corporation to Be Substituted	55
Section 11.03.	Opinion of Counsel to Be Given to Trustee	56

Section 14.01.	Conversion Privilege	56
Section 14.02.	Conversion Procedure; Settlement Upon Conversion	60
Section 14.03.	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or Redemption Notice	64
Section 14.04.	Adjustment of Conversion Rate	66
Section 14.05.	Adjustments of Prices	75
Section 14.06.	Shares to Be Fully Paid	76

Section 15.01.	[Intentionally Omitted]	81
Section 15.02.	Repurchase at Option of Holders Upon a Fundamental Change	81
Section 15.03.	Withdrawal of Fundamental Change Repurchase Notice	84
Section 15.04.	Deposit of Fundamental Change Repurchase Price	84
Section 15.05.	Covenant to Comply with Applicable Laws Upon Repurchase of Notes	85

Section 16.01.	Optional Redemption	86
Section 16.02.	Notice of Optional Redemption; Selection of Notes	86
Section 16.03.	Payment of Notes Called for Redemption	87
Section 16.04.	Restrictions on Redemption	88

Section 17.01.	Provisions Binding on Company’s Successors	88
Section 17.02.	Official Acts by Successor Corporation	88
Section 17.03.	Addresses for Notices, Etc	88
Section 17.04.	Governing Law; Jurisdiction	89
Section 17.05.	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	89
Section 17.06.	Legal Holidays	90
Section 17.07.	No Security Interest Created	90
Section 17.08.	Benefits of Indenture	90
Section 17.09.	Table of Contents, Headings, Etc	90
Section 17.10.	Authenticating Agent	90
Section 17.11.	Execution in Counterparts	91
Section 17.12.	Severability	91
Section 17.13.	Waiver of Jury Trial	92
Section 17.14.	Force Majeure	92
Section 17.15.	Calculations	92
Section 17.16.	USA PATRIOT Act	92

Stock Price
Effective Date	$59.91	$65.00	$75.00	$77.88	$90.00	$101.25	$125.00	$150.00	$200.00	$250.00	$350.00	$450.00
June 11, 2024	3.8519	3.1877	2.2780	2.0851	1.4907	1.1433	0.7269	0.4973	0.2635	0.1439	0.0335	0.0000
June 15, 2025	3.8519	3.1691	2.2004	1.9982	1.3866	1.0418	0.6477	0.4414	0.2364	0.1308	0.0313	0.0000
June 15, 2026	3.8519	3.0726	2.0516	1.8426	1.2267	0.8961	0.5418	0.3685	0.1999	0.1119	0.0267	0.0000
June 15, 2027	3.8519	2.9263	1.8452	1.6298	1.0184	0.7135	0.4172	0.2847	0.1575	0.0890	0.0208	0.0000
June 15, 2028	3.8519	2.7572	1.5835	1.3589	0.7594	0.4968	0.2804	0.1948	0.1108	0.0634	0.0145	0.0000
June 15, 2029	3.8519	2.5642	1.2149	0.9750	0.4191	0.2422	0.1378	0.1001	0.0586	0.0340	0.0073	0.0000
June 15, 2030	3.8519	2.5448	0.4935	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000

Section 14.07.	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	76
Section 14.08.	Certain Covenants	78
Section 14.09.	Responsibility of Trustee	79
Section 14.10.	Notice to Holders Prior to Certain Actions	79
Section 14.11.	Stockholder Rights Plans	80
Section 14.12.	Exchange In Lieu Of Conversion	80

	,
as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.

By:
Authorized Officer

GRANITE CONSTRUCTION
INCORPORATED


By:	/s/ Elizabeth L. Curtis
	Name:	Elizabeth L. Curtis
	Title:	Executive Vice President and Chief Financial Officer

WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee


By:	/s/ Karleen R. Bratland
	Name:	Karleen R. Bratland
	Title:	Assistant Vice President

Date of exchange	Amount of decrease in principal amount of this Global Note	Amount of increase in principal amount of this Global Note	Principal amount of this Global Note following such decrease or increase	Signature of authorized signatory of Trustee or Custodian


(Name)


(Street Address)


(City, State and Zip Code) Please print name and address

		Principal amount to be converted (if less than all): $ ,000

		NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.


		Social Security or Other Taxpayer Identification Number

Dated:

			Signature


			Social Security or Other Taxpayer Identification Number

			Principal amount to be repaid (if less than all): $ ,000

			NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.

General Terms.

Trade Date:	[ ], 2024

Effective Date:	The second Exchange Business Day immediately prior to the Premium Payment Date

Option Style:	“Modified American”, as described under “Procedures for Exercise” below

Option Type:	Call

Buyer:	Counterparty

Seller:	Dealer

Shares:	The common stock of Counterparty, par value USD 0.01 per share (Exchange symbol “GVA”).

Number of Options:	[ ]¹⁰. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero.

Applicable Percentage:	[ ]%

Option Entitlement:	A number equal to the product of the Applicable Percentage and [ ]¹¹.

Strike Price:	USD [ ]

Cap Price:	USD [ ]

Premium:	USD [ ]

Premium Payment Date:	[ ], 2024

Exchange:	The New York Stock Exchange

Related Exchange(s):	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.

Excluded Provisions:	Section 14.04(h) and Section 14.03 of the Indenture.

Procedures for Exercise.

Conversion Date:	With respect to any conversion of a Convertible Note (other than (1) any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date and (2) any conversion of Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date and in connection with a “Make-Whole Fundamental Change” (as defined in the Indenture) (any such conversion described in (1) or (2) above, an “Early Conversion”), to which the provisions of Section 9(j)(i) of this Confirmation shall apply), the date on which the “Holder” (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture; provided that in no event shall a Conversion Date be deemed to occur hereunder (and no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion in respect of which Counterparty (x) has elected to designate a financial institution for exchange in lieu of conversion of such Convertible Note pursuant to Section 14.12 of the Indenture and (y) has not delivered to Dealer a related Notice of Exercise. With the exception of Options exercised under “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below, Options may only be exercised on a Conversion Date in respect of the Convertible Notes and only in an amount corresponding to the number of USD 1,000 principal amount of Convertible Notes converted on such Conversion Date.

Free Convertibility Date:	November 15, 2029

Expiration Time:	The Valuation Time

Expiration Date:	May 15, 2030, subject to earlier exercise.

Multiple Exercise:	Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below.

Automatic Exercise:	Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date occurring on or after the Free Convertibility Date in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting “Holder” (as such term is defined in the Indenture), a number of Options equal to [(i)] the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred [minus (ii) the number of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction Confirmation letter agreement dated June [ ], 2024 between Dealer and Counterparty (the “Base Call Option Confirmation”),]¹² shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty or the Trustee (or other agent of Counterparty previously identified as such to Dealer by Counterparty in writing) has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below. If the Trustee (or any other such agent) provides any Notice of Exercise to Dealer, Dealer shall be entitled to rely on the accuracy of such Notice of Exercise without any independent investigation, and the contents of such Notice of Exercise shall be binding on Counterparty. Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options.

Valuation Time:	At the close of trading of the regular trading session on the Exchange; provided that if the principal trading session is extended past the close of the regular trading session for such Exchange, the Calculation Agent shall determine the Valuation Time in good faith and in a commercially reasonable manner.

Market Disruption Event:	Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following: “‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Shares or in any options contracts or futures contracts relating to the Shares.”

Settlement Terms.

Settlement Method:	For any Option, Net Share Settlement; provided that if the Relevant Settlement Method set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty or Trustee (or other agent of Counterparty previously identified as such to Dealer by Counterparty in writing) shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option. If the Trustee (or any other such agent) provides any such notice, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty.

Relevant Settlement Method:	In respect of any Option: (i) if Counterparty has not elected to settle all or any portion of its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof in cash, either by specifying a Cash Percentage of 0% or by not timely specifying a Cash Percentage, in each case, pursuant to Section 14.02(a) of the Indenture (such settlement method the “Default Settlement Method”), then the Relevant Settlement Method for such Option shall be Net Share Settlement; (ii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof in a combination of cash and Shares by specifying a Cash Percentage less than 100% but greater than 0% pursuant to Section 14.02(a) of the Indenture, then the Relevant Settlement Method for such Option shall be Combination Settlement; and

	(iii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in excess of the principal amount thereof entirely in cash pursuant to Section 14.02(a) of the Indenture (such settlement method, “Settlement in Cash”), then the Relevant Settlement Method for such Option shall be Cash Settlement.

Net Share Settlement:	If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option. Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period.

Combination Settlement:	If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option:

	(i)	cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”) equal to the product of (1) the Cash Percentage and (2) the Daily Option Value, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash Amount for such Valid Day shall be deemed to be zero; and

	(ii)	Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination Settlement Share Amount”) equal to (A) (1) the Daily Option Value on such Valid Day minus the Daily Combination Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero;

	provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option. Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period.

Cash Settlement:	If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount for any Option exceed the Applicable Limit for such Option.

Daily Option Value:	For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero.

Applicable Limit:	For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000.

Applicable Limit Price:	On any day, the opening price as displayed under the heading “Op” on Bloomberg page GVA <equity> (or any successor thereto).

Valid Day:	A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other United States market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day.

Scheduled Valid Day:	A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day.

Business Day:	Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

Relevant Price:	On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page GVA <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange on such Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent in a good faith and commercially reasonable manner using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

Settlement Averaging Period:	For any Option, the 50 consecutive Valid Days commencing on, and including, the 51st Scheduled Valid Day immediately prior to the Expiration Date.

Settlement Date:	For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option.

Settlement Currency:	USD

Other Applicable Provisions:	The provisions of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option.

Representation and Agreement:	Notwithstanding anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions and limitations arising from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)).

Potential Adjustment Events:	Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price”, “Daily VWAP,” “Daily Conversion Value,” “Daily Net Settlement Amounts” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, 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 “Holders” (as such term is defined in the Indenture) of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which “Holders” (as such term is defined in the Indenture) of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fifth sentence of Section 14.04(d) of the Indenture).

Method of Adjustment:	Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions (and, for the avoidance of doubt, in lieu of any adjustments pursuant to such Section), upon any Potential Adjustment Event, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment to the Convertible Notes under the Indenture 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 for the Transaction as determined by reference to the Dilution Adjustment Provisions, to the extent an adjustment is required under the Indenture.

	Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below:

	(i)	if the Calculation Agent in good faith and in a commercially reasonable manner 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 14.05 of the Indenture, Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent will determine the 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 for the Transaction in a commercially reasonable manner;

	(ii)	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 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 documented in writing in reasonable detail (including, but not limited to, hedging mismatches and market losses customary in this context for transactions of this type) and commercially reasonable expenses incurred by Dealer in connection with its Hedging Activities customary in this context for transactions of this type (subject to the requirements set forth below opposite the caption “Hedging Adjustments”) as a result of such event or condition not having been publicly announced prior to the beginning of such period; and

	(iii)	if any Potential Adjustment Event is declared by Counterparty 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, but without duplication, the Calculation Agent shall 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 documented in writing in reasonable detail (including, but not limited to, hedging mismatches and market losses customary in this context for transactions of this type) and commercially reasonable expenses incurred by Dealer in connection with its Hedging Activities (subject to the requirements set forth under Hedging Adjustments below) as a result of such Potential Adjustment Event Change.

Dilution Adjustment Provisions:	Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture.

Extraordinary Events applicable to the Transaction:

Merger Events:	Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in Section 14.07(a) of 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 Section 14.04(e) of the Indenture.

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 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, Option Entitlement and any other variable relevant to the exercise, 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), 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 corporation 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 election; 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.

Announcement Event:	(i) The public announcement by the Counterparty, any of the Counterparty’s affiliates or agents or a Valid Third Party Entity of any Merger Event or Tender Offer or the announcement by the Counterparty, any of the Counterparty’s affiliates or agents or a Valid Third Party Entity of any intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by the Counterparty, any of the Counterparty’s affiliates or agents or a Valid Third Party Entity of any potential acquisition or disposition by the Issuer and/or its subsidiaries where the aggregate consideration exceeds 35% of the market capitalization of the Issuer as of the date of such announcement (an “Acquisition Transaction”), (iii) the public announcement by the Counterparty or any of the Counterparty’s affiliates or agents of an intention by the Counterparty to enter into, or to explore strategic alternatives that may include a Merger Event or Tender Offer or an Acquisition Transaction or (iv) any subsequent public announcement by the Counterparty, any of the Counterparty’s affiliates or agents or a Valid Third Party Entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i), (ii) or (iii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), in each case, as determined by the Calculation Agent in good faith and in a commercially reasonable manner. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” (A) “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity Definitions (but the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded) and (B) “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions, as modified by Section 9(x)(iii) below.

Valid Third Party Entity:	In respect of any transaction, any third party that the Calculation Agent in good faith and in a commercially reasonable manner determines has a bona fide intent to enter into or consummate such transaction (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent shall take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares).

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) 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, effectiveness or promulgation of new regulations authorized or mandated by existing statute)” and (iv) adding the words “provided that in the case of clause (Y) hereof and any law, regulation or interpretation, the consequence of such law, regulation or interpretation is applied consistently by Dealer to all of its similarly situated counterparties and/or similar transactions; and provided further that it shall not constitute a “Change in Law” unless such party has used good faith efforts to avoid such illegality or increased cost, it being understood and agreed that (x) such party shall not be required to violate any applicable law, rule, regulation or reasonably related and consistently applied policy of such party, in each case as reasonably determined by such party, in connection with avoiding such illegality or increased cost and (y) notwithstanding the foregoing, any materially increased cost incurred in connection with such efforts to avoid such illegality shall constitute a “Change in Law” pursuant to clause (Y);” after the semi-colon in the last line thereof. Notwithstanding anything to the contrary herein or in the Equity Definitions, upon occurrence of any “Change in Law” as set forth in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions, the provisions applicable to an “Increased Cost of Hedging” as set forth in Section 12.9(b)(vi) of the Equity Definitions shall apply to such “Change in Law” as if Increased Cost of Hedging were applicable to such event (in lieu of the provisions set forth in Section 12.9(b)(i)).

Failure to Deliver:	Applicable